MATTER OF PRISCO v. BUXBAUM

ORDERED that the order is affirmed, with costs.

It is well settled that the court may modify a prior order or judgment of child support or maintenance payments upon a showing of a "substantial change in circumstances" (Domestic Relations Law § 236[B][9][b]; Klapper v. Klapper, 204 A.D.2d 518; Schnoor v. Schnoor, 189 A.D.2d 809; Dowd v. Dowd, 178 A.D.2d 330). The party seeking the modification has the burden of establishing the existence of a change in circumstances warranting the modification (see, Klapper v. Klapper, supra). In determining whether there has been a substantial change in circumstances, the change is measured by comparing the payor's financial situation at the time of the application for a downward modification with that at the time of the order or judgment (see, Klapper v. Klapper, supra; Schnoor v. Schnoor, supra).

The former husband presented genuine issues of fact regarding whether he will suffer extreme hardship if the maintenance and support terms of the judgment of divorce are not modified and, accordingly, the Family Court properly granted a hearing to determine whether modification is warranted (see, Soba v. Soba, 213 A.D.2d 472; Grimaldi v. Grimaldi, 167 A.D.2d 443; Heath v. Heath, 128 A.D.2d 587).