| Matter of Kerner v Kerner |
| 2007 NY Slip Op 09776 [46 AD3d 683] |
| December 11, 2007 |
| Appellate Division, Second Department |
| In the Matter of Deborah Kerner, Appellant, v Ira Kerner,Respondent. |
—[*1] Kerner & Kerner, New York, N.Y. (Kenneth T. Kerner of counsel), for respondent.
In a child support proceeding pursuant to Family Court Act article 4, the mother appeals froman order of the Family Court, Westchester County (Devlin, J.), dated November 3, 2006, whichdenied her objections to an order of the same court (Cabanillas-Thompson, S.M.), dated August17, 2006, which, sua sponte, modified a judgment of divorce dated December 16, 2004, bydirecting the father to pay only 58% of child care expenses, effective August 31, 2005, and, ineffect, denied her petition to modify a stipulation of settlement dated November 10, 2004, whichwas incorporated but not merged into the judgment of divorce, to direct the father to pay aportion of the expense of the children's camp.
Ordered that the order dated November 3, 2006 is modified, on the law, by deleting theprovision thereof denying the mother's objection to so much of the order dated August 17, 2006,as, sua sponte, modified the judgment of divorce by directing the father to pay only 58% ofchildcare expenses, effective August 31, 2005, and substituting therefor a provision sustainingthat objection to the extent of directing the father to pay 79% of the childcare expenses during theperiod commencing August 31, 2005, to November 10, 2006; as so modified, the order datedNovember 3, 2006, is affirmed, without costs or disbursements, and the order dated August 17,2006, is modified accordingly.
The mother sought to modify the parties' stipulation of settlement, which was incorporatedbut not merged into their judgment of divorce, to direct the father to pay for certain campexpenses in light of the fact that child care expenses had otherwise decreased. The stipulationexpressly provided that "[t]he mother shall be responsible to pay for all extracurricular activitiesof [*2]the children including but not limited to . . .camp . . . without an obligation on the part of the Father to contribute to same." Themother does not dispute that the stipulation was fair and equitable when the parties signed it.Where the parties have provided for child support in an agreement, it is to be assumed that theyhave anticipated and adequately provided for the child's future needs and the terms of theagreement " 'should not be freely disregarded' " (Matter of Gravlin v Ruppert, 98 NY2d1, 5 [2002], quoting Matter of Boden v Boden, 42 NY2d 210, 212-213 [1977]). As themother's claim is directed solely to readjusting the respective obligations of the parents to supporttheir children, the mother was required to demonstrate an "unforeseen change in circumstancesand a concomitant showing of need" to warrant a modification (Matter of Boden v Boden,42 NY2d at 213; see Matter of Brescia v Fitts, 56 NY2d 132, 138 [1982]). Themother failed to meet this burden. Accordingly, the Family Court properly denied her objectionto so much of the order dated August 17, 2006, as, in effect, denied her petition to modify thestipulation.
The Family Court erred, however, in denying the mother's objection to that portion of theorder dated August 17, 2006, which directed the father to pay 58% of childcare expenses,effective August 31, 2005. The stipulation of settlement provides that the father was required topay 79% of the childcare expenses for the first 24 months following the parties' execution of thestipulation, which was dated November 10, 2004. Accordingly, this objection should have beensustained to the extent of directing the father to pay 79% of the childcare expenses during theperiod commencing August 31, 2005 to November 10, 2006, and the order dated August 17,2006 must be modified accordingly. Schmidt, J.P., Rivera, Santucci and Balkin, JJ., concur.