Upward mod request in NY

I am the father, non-custodial parent (joint custody). I have our 2 children 3 days per week.

We opted out of CSSA, I'm paying $671/month.

Ex filed for upward modification. At time of agreement, I made $57780. In 2008 I made $69371. This represents a change of 20%.

Their 2008 1040 shows an income of $12000. According to their financial disclosure, they have a mortgage payment of $1080/month. Not sure how this makes any sense to the court.

I was under the impression that there are primarily two factors the court considers; 1) needs of the children not being met by the current level of support, and 2) significant change of circumstances. While I have had an increase in my salary, there are numerous caselaw findings saying that an increase in income by the non-custodial is not a factor to increase support by itself.

According to the IRS living standards, $671 is more than enough to provide for two children.

"Upon application by either party, the court may annul or modify any prior order or judgment as to maintenance or child support, upon a showing of the recipient's inability to be self-supporting or a substantial change in circumstance ... "

and, from Boden v. Boden (1977), the NYS support courts rely heavily on this, "Unless there has been an unforeseen change in circumstances and a concomitant showing of need, an award for child support in excess of that provided for in the separation agreement should not be made based solely on an increase in cost where the agreement was fair and equitable when entered into (see McMurray v. McMurray, 53 A.D.2d 596-597, 384 N.Y.S.2d 1007, Matter of Best v. Baras, 52 A.D.2d 557, 382 N.Y.S.2d 318; Matter of Klein v. Sheppard, 52 A.D.2d 532, 381 N.Y.S.2d 885)."

I don't see how the court can ignore these two basic guidelines when reviewing a case for modification. Obviously the childrens' needs are being met, and the 'unexpected change in cirucumstance (my increase in income)' would not, by itself, warrant a modification.

Both parties are re-married, and we each have other children with our new spouses (I have two new children, she has one).

What do you see as the likely outcome if this goes to trial? We are in family court presently.

Thanks.

The state formulas tend to be a bit mechanical--and thats intentional. My guess is if your income went up 20% that enough to trigger review.

Your gross is subject to a limited set of offsets to get to counted net.

Ditto as to her gross . I too fail to see what her mortgage has to do with it.

I'm not sure her spouses income needs to count.

If she quit work that may matter!

My comment about her mortgage was this:  if her gross income is $12K, and her mortgage is $12960, she isn't reporting all income on the disclosure forms.  FCA Sec. 413:

"at the discretion of the court, the court may attribute or impute income from, such other resources as may be available to the parent, including, but not limited to: [...] money, goods, or services provided by relatives and friends"

Thanks.