In the Matter of Isabella M. Blake, Respondent, v. Kent McKamy, Appellant

In the Matter of Isabella M. Blake, Respondent, v Kent McKamy, Appellant. [MAJORITY] Order, Family Court, New York County (Judith Sheindlin, F.C.J.), entered on or about March 1, 1990, which, inter alia, vacated the order of the Hearing Examiner rendered November 3, 1989, ordered respondent to resume payment in accordance with the terms of an agreement which was incorporated but not merged in a judgment of divorce, and remanded the matter to the Hearing Examiner to fix the amount of arrears with the schedule of payments, unanimously affirmed, without costs. The agreement reveals an intent by the parties to treat the unallocated amount of $35,000 per year, payable by respondent, as spousal maintenance. Accordingly, respondent was required to prove extreme hardship in order to obtain a downward modification of the agreement (Domestic Relations Law § 236 [B]). A sufficient basis exists in the record to support our determination that the respondent failed to meet his burden of proof. Concur—Carro, J. P., Ellerin, Kupferman, Smith and Rubin, JJ.