Michelle I. DeLuise, Appellant, v. Robert DeLuise, Respondent

Michelle I. DeLuise, Appellant, v Robert DeLuise, Respondent. [760 NYS2d 130] [MAJORITY] Order, Supreme Court, Bronx County (LaTia Martin, J.), entered on or about May 30, 2001, which (1) upon the parties’ respective motions to partially reject a special referee’s report, granted plaintiffs motion for an upward modification of defendant’s $100 weekly maintenance obligation only to extent of directing defendant to pay an additional $100 per week and to provide plaintiff with health insurance, and (2) denied plaintiffs motion to hold defendant in contempt for defaulting on his original maintenance obligation, unanimously affirmed, without costs. The challenged modification in maintenance reflects a proper balancing of plaintiff’s substantial change in circumstances due to deteriorating health and defendant’s ability to pay for plaintiffs new needs (Domestic Relations Law § 236 [B] [9] [b]), and is otherwise substantially supported by the record (see Golden v Golden, 228 AD2d 184 [1996]). Plaintiffs contempt motion was properly denied based upon credible evidence of defendant’s inability to pay his original maintenance obligation due to college tuition expenses. We have considered plaintiffs other arguments and find them unavailing. Concur — Buckley, P.J., Nardelli, Mazzarelli, Sullivan and Gonzalez, JJ.