| Matter of Casolo v Casolo |
| 2008 NY Slip Op 02923 [50 AD3d 1196] |
| April 3, 2008 |
| Appellate Division, Third Department |
| In the Matter of Susan Casolo, Respondent, v Mark Casolo,Appellant. (And Another Related Proceeding.) |
—[*1] Shawn D. Flaherty, Albany, for respondent.
Mercure, J. Appeals (1) from an order of the Family Court of Albany County (Duggan, J.),entered May 30, 2006, which, among other things, granted petitioner's application, in twoproceedings pursuant to Family Ct Act article 4, for modification of a prior child support order,and (2) from an order of said court, entered June 5, 2006, which granted petitioner's applicationfor counsel fees.
The parties were married in 1986 and have two children, born in 1988 and 1990. Pursuant toa settlement agreement that was incorporated but not merged into the parties' 2000 divorcejudgment, respondent was to pay monthly child support of $2,768.42 for two years. Thereafter,support payments were to be adjusted every 24 months, with the adjustments to be made inaccordance with the Child Support Standards Act (see Family Ct Act § 413), andbased upon respondent's income during the prior year. Respondent's child support payments weresubsequently reduced twice—in 2002 and 2004, with the reductions totaling $835 permonth—based upon letters written by him to the Support Collection Unit, without noticeto petitioner.
In July 2005, petitioner commenced the first of these proceedings, seeking increased childsupport. After respondent moved to dismiss, petitioner filed an amended petition formodification and a petition for enforcement of the support agreement, alleging that respondenthad deferred income from one year to the next in order to manipulate his support obligation.[*2]Petitioner submitted respondent's W-2 statements showinghis income to be $229,639 in 2000, $188,457 in 2001, $314,067 in 2002, $158,579 in 2003, and$470,819 in 2004. Pursuant to the settlement agreement, respondent's child support paymentswere adjusted based on his income in 2001 and 2003.
Following a hearing, the Support Magistrate dismissed the enforcement petition butconcluded that petitioner had demonstrated both a change in circumstances and that the childrenhad unmet needs warranting modification. The Support Magistrate determined that the bestrepresentation of respondent's income was the average of his earnings from 1999 to 2004, and setrespondent's monthly support obligation at $3,500. Family Court, finding that respondent failedto disclose his income to petitioner as required by the settlement agreement, reinstated theenforcement petition and concluded that respondent owed arrears of $49,138 plus interest. Inaddition, on the modification petition, the court credited petitioner's testimony that the childrenhad unmet needs and that respondent had admitted to deliberately reducing his income during theyears when support was to be adjusted. The court concluded that respondent's average incomewas $223,676 and, applying the statutory percentage to 100% of that income, increased theamount of support to $4,660 per month. In a subsequent order, the court directed respondent topay petitioner $5,760 in counsel fees. Respondent appeals from both orders and we nowaffirm.[FN*]
Pursuant to Family Ct Act § 461 (b), "[m]odification of the child support provisions inan agreement which survives a judgment of divorce may be ordered upon a showing of changedcircumstances establishing that the needs of the children are not being adequately met"(Matter of Plog v Plog, 258 AD2d 713, 714 [1999]; see Matter of Brescia v Fitts,56 NY2d 132, 139-141 [1982]; Matter of Neil v Neil, 232 AD2d 771, 771-772 [1996];cf. Matter of Boden v Boden, 42 NY2d 210, 213 [1977]). Under such circumstances,"[t]he overriding concern focuses on the child (who was not a party to the separation agreement)and 'the needs of a child must take precedence over the terms of the agreement when it appearsthat the best interests of the child are not being met' " (Matter of Ianniello v Fox, 33 AD3d 1094, 1095 [2006], quotingMatter of Gravlin v Ruppert, 98 NY2d 1, 5 [2002]). Factors to be considered include "theincreased needs of the children due to special circumstances or to the additional activities ofgrowing children, the increased cost of living insofar as it results in greater expenses for thechildren, . . . a substantial improvement in the financial condition of a parent, andthe current and prior life-styles of the children" (Matter of Brescia v Fitts, 56 NY2d at141 [citations omitted]; see Matter of Plog v Plog, 258 AD2d at 715; see also Matter of Kent v Kent, 29AD3d 123, 132-133 [2006]).
Here, respondent's sole argument is that Family Court abused its discretion in modifying theparties' child support agreement. In our view, however, petitioner demonstrated that thediminishing child support paid by respondent has given rise to unmet needs. Specifically,petitioner testified that her rent has increased and that she is behind in her payments, and that thechildren's other expenses—such as car insurance premiums, gasoline, school lunches,uninsured [*3]medical expenses, and furniture—havesignificantly increased while the amount of support has decreased. In light of the inadequacy ofsupport and respondent's dramatic "drops" in income during the years when his supportobligation was to be adjusted, considered together with the significant increases—oneexceeding $300,000—during the years when child support was not reevaluated, FamilyCourt properly concluded that modification was warranted here (see Matter of Kent vKent, 29 AD3d at 132-133; Matter of Neil v Neil, 232 AD2d at 772; Matter ofRaymond v Pietro, 228 AD2d 754, 755 [1996]; Nicholas v Cirelli, 209 AD2d 840,840 [1994]).
Cardona, P.J., Spain, Malone Jr. and Stein, JJ., concur. Ordered that the orders are affirmed,without costs.
Footnote *: Although respondent appealedfrom the order awarding fees, he failed to address that order in his brief and, thus, we deem anyarguments he might make in that regard to be waived (see Matter of Alexis BB., 285AD2d 751, 752 [2001]).