| Matter of Donato v Donato |
| 2007 NY Slip Op 06679 [43 AD3d 920] |
| September 11, 2007 |
| Appellate Division, Second Department |
| In the Matter of Sheila Donato, Respondent, v Peter A.Donato, Appellant. |
—[*1] Sheila Donato, Yonkers, N.Y., respondent pro se.
In a support proceeding pursuant to Family Court Act article 4, Peter Donato appeals from anorder of the Family Court, Westchester County (Klein, J.), entered August 23, 2006, whichdenied his objection to an order of the same court (Jordan, S.M.), entered March 3, 2006, which,after a hearing, inter alia, granted the petition of Sheila Donato to enforce his maintenanceobligation contained in a stipulation of settlement dated June 11, 1999, which was incorporatedbut not merged into a judgment of divorce dated December 13, 1999, and for maintenancearrears, and denied his cross petition to terminate his maintenance obligation.
Ordered that the order is affirmed, with costs.
In a matrimonial action, the parties to the instant proceeding entered into a stipulation ofsettlement in open court, which was incorporated but not merged into the judgment of divorce.The stipulation of settlement obligated the appellant Peter Donato to pay maintenance to thepetitioner Sheila Donato. Pursuant to the stipulation of settlement, "[t]he parties agree[d] that the[appellant's] obligation for the payment of spousal maintenance may terminate upon thefollowing events: . . . [petitioner] obtaining a job that would pay her $30,000."Relevant to that obligation, the parties agreed that, "upon the [appellant's] request, once per yearthe [petitioner] shall provide the [appellant] with a copy of her W-2 statement in order tosubstantiate what her income is."
The petitioner commenced this proceeding to enforce the appellant's maintenance [*2]obligation and for maintenance arrears. The appellantcross-petitioned to terminate the obligation, based on his contention that the petitioner's job paidher more than the sum of $30,000 per year. After a hearing, a support magistrate granted thepetition and denied the cross petition. The Family Court denied the appellant's objections to thatdetermination. We affirm.
The parties' stipulation of settlement is a contract, subject to the principles of contractconstruction and interpretation (seeRivers v Rivers, 35 AD3d 426, 428 [2006]; Pellino v Pellino, 308 AD2d 522[2003]). The appellant's contention that the petitioner's income should be calculated pursuant tothe definition articulated in Family Court Act § 413 (1) (b) (5) (i)-(vi) and DomesticRelations Law § 240 (1-b) (b) (5) (i)-(vi) is rebutted by the plain terms of the stipulation ofsettlement, which provide that the petitioner's W-2 form was to be the basis for proof of thepetitioner's income (see Matter of Weiss v Weiss, 289 AD2d 498 [2001]). In any event,on the record presented, the Support Magistrate neither improvidently exercised her discretionnor impermissibly re-wrote the parties' stipulation by declining to impute income to the petitionerfor certain benefits paid by her employer (see Worsnop v Worsnop, 204 AD2d 624[1994]). That determination is entitled to great deference since the Support Magistrate was in thebest position to assess the credibility of the witnesses and the evidence proffered (see Matter of Musarra v Musarra, 28AD3d 668, 669 [2006]; Matter ofPenninipede v Penninipede, 6 AD3d 445 [2004]). In sum, the Support Magistrate'sdetermination that the petitioner had not obtained a job that would pay her the sum of at least$30,000 within the meaning of the parties' stipulation of settlement is supported by the record,and the Family Court properly denied the appellant's objections to that determination (seeMatter of Musarra v Musarra, supra; Matter of Falk v Owen, 29 AD3d 991 [2006]; Matter ofPenninipede v Penninipede, supra).
The appellant's remaining contentions are without merit. Rivera, J.P., Ritter, Florio andFisher, JJ., concur.