| Zwickel v Szajer |
| 2008 NY Slip Op 00409 [47 AD3d 1157] |
| January 24, 2008 |
| Appellate Division, Third Department |
| Claire Zwickel, Appellant, v Bogdan Szajer, Respondent. (And aRelated Proceeding.) |
—[*1] Cohen & Cohen, L.L.P., Utica (Daniel S. Cohen of counsel), for respondent.
Peters, J. Appeal from an order of the Family Court of Greene County (Lalor, J.), enteredOctober 30, 2006, which, among other things, denied plaintiff's application (upon referral of thematter from the Supreme Court) for a modification of a prior child support order.
The parties were married in November 1989 and have two children, a daughter (born in1991) and a son (born in 1998). They separated in January 2002 and, in April 2003, the SupportMagistrate entered an order for child support. Shortly thereafter, plaintiff commenced this actionfor divorce where the issue of child support was referred to Family Court (Stegmayer, SupportMag.). At about the same time, plaintiff commenced a proceeding, pursuant to Family Ct Actarticle 4, alleging a violation of the April 2003 order. After a hearing on both matters, theSupport Magistrate found, as here relevant, that defendant was in willful violation of its priororder and, by separate order, that there was no substantial change in circumstances to warrant anupward modification of child support. After plaintiff's objections to both orders were denied byFamily Court, plaintiff appealed.
We agree with Family Court that the Support Magistrate applied the correct standard indetermining plaintiff's application for an upward modification of the April 2003 order of support.In a matrimonial action, unless a prior support order from Family Court is continued by SupremeCourt, the prior order terminates when Supreme Court makes a new support determination(see [*2]Family Ct Act § 462). As no such orderwas issued by Supreme Court, instead referring the matter to Family Court to determine theapplication, the "substantial change in circumstances" standard was correctly applied uponplaintiff's application for a modification of the Support Magistrate's prior order of support (see Cynoske v Cynoske, 8 AD3d720, 722-723 [2004]).
Moreover, Family Court appropriately denied plaintiff's objections to the SupportMagistrate's conclusion that she failed to demonstrate the requisite substantial change incircumstances to warrant an upward modification of child support (see Matter of Blasdell v Steiner, 14AD3d 898, 899 [2005]). Since the time of the April 2003 order, plaintiff's annual wagesdecreased approximately $1,300 while defendant's increased approximately $600. As this aloneis insufficient to support her application, plaintiff claimed that the children's needs were notbeing met, primarily due to the children's private school expenses. Giving due deference to theSupport Magistrate's factual determinations on this issue, which had to include a consideration ofher request that defendant be directed to contribute towards the children's private schooleducation, we find no basis to disturb the discretionary determination rendered by the SupportMagistrate since it was based upon the best interests of the children (see Matter of Fisher v Fritzsch, 35AD3d 1146, 1147 [2006], lv denied 8 NY3d 810 [2007]). Clearly, the SupportMagistrate may order a noncustodial parent to contribute to a child's private school expenses(see Family Ct Act § 413 [1] [c] [7]; Matter of Aulicino v Kaiser, 44 AD3d 1140, 1141 [2007];Matter of Wen v Wen, 304 AD2d 897, 898 [2003]) after its consideration of numerousfactors (see Matter of Aulicino v Kaiser, 44 AD3d at 1141; Matter of Wen vWen, 304 AD2d at 898). Here, however, despite the oldest child's previous foray into theprivate school arena for her early education needs and the parties' return of her to public schoolfor three years prior to their separation, plaintiff made an independent decision to enroll bothchildren in private school. Proffering only a dearth of evidence that the children required sucheducation because of their social or special education needs (compare Matter of Aulicino vKaiser, 44 AD3d at 1141; Matter of Wen v Wen, 304 AD2d at 897-898), we agreethat there was no substantial change in circumstances such that defendant should now be requiredto contribute to those additional expenses. Moreover, we find no abuse of discretion in thefurther determination that defendant not be required to provide life insurance (see Grenier vGrenier, 210 AD2d 557, 559 [1994]) when it was not required by the prior order, no upwardmodification was granted and his testimony indicated that such insurance was already procuredfor the benefit of these children as well as his two other children from a prior marriage.
Addressing the issue of counsel fees, we note that plaintiff made a prior request for suchrelief which was denied by Supreme Court and later affirmed on appeal (Zwickel v Szajer, 45 AD3d 1222[2007]).[FN*]
As to the contention that Family Court failed to require the issuance of an income deductionorder once the Support Magistrate determined that defendant willfully violated the order ofsupport, we note that Family Ct Act § 440 (1) (b) requires that such an order be included[*3]unless it can articulate "that there is good cause not to requireimmediate income withholding[ ] or . . . that an agreement providing for analternative arrangement has been reached between the parties" (Family Ct Act § 440 [1][b] [2]; see Matter of Shreffler v Shreffler, 283 AD2d 679, 681 [2001]; see alsoMatter of Dora T.J. v Jean-Paul A.S., 224 AD2d 420, 421 [1996]). With appropriateobjections before it, Family Court should have modified the Support Magistrate's order byincluding such an enforcement provision due to defendant's past financial responsibilities inmeeting his child support obligations.
Mercure, J.P., Rose, Lahtinen and Kavanagh, JJ., concur. Ordered that the order is modified,on the law, without costs, by ordering that a wage deduction order issue pursuant to Family CtAct § 440 (1) (b) (2) and, as so modified, affirmed.
Footnote *: However, due to defendant'swillful violation of his child support obligation, plaintiff was awarded statutory counsel fees inthe amount of $1,000 (see Family Ct Act § 438 [b]; § 454 [3]; Matter of Duffy v Duffy, 30 AD3d735, 737 [2006]).