| Matter of Imperato v Imperato |
| 2008 NY Slip Op 06604 [54 AD3d 375] |
| August 12, 2008 |
| Appellate Division, Second Department |
| In the Matter of Sarina Imperato, Respondent, v AnthonyImperato, Appellant. |
—[*1] Bodnar & Milone, LLP, White Plains, N.Y. (Pamela J. Jenson of counsel), forrespondent.
In a support proceeding pursuant to Family Court Act article 4, the appeal is from an order ofthe Family Court, Orange County (Bivona, J.), dated October 11, 2007, which sustained thepetitioner's objections to an order of the same court (Cabanillas-Thompson, S.M.), dated April17, 2007, granting, after a hearing, the petition to the extent of awarding child support in theamount of $1,066.44 per month, and directed Anthony Imperato to pay monthly child support inthe amount of $2,296.50 per month.
Ordered that the order dated October 11, 2007 is reversed, with costs, the petitioner'sobjections are denied, and the order dated April 17, 2007 is reinstated.
The parties entered into a separation agreement which was incorporated but not merged intoa subsequent judgment of divorce. Pursuant to its terms, the father agreed to pay child support tothe mother at the equivalent of $1,066.44 per month pursuant to the Child Support Standards Act(hereinafter the CSSA), comprising payments of $600 per month for 10 years in addition to themother's immediate receipt of the father's share of the equity in the marital residence ($40,000),plus $5,000 cash. The agreement also included a provision that if, after 10 years, the mother wereto seek modification, "she may do so only if such request meets all of the then existing statutoryrequirements."
At the expiration of the 10-year period, the father had been paying $600 per month in childsupport. In November 2006 the mother petitioned for an upward modification of child support.The Support Magistrate increased the award of child support to the sum of $1,066.44 per month.The [*2]Family Court granted the mother's objection to this sumand increased child support to the sum of $2,296,50 per month. The father appeals.
The Support Magistrate correctly awarded child support in the sum of $1,066.44, as per theparties' agreement, upon the mother's petition for an upward modification following the passingof the 10-year period.
Contrary to the mother's assertion, a request for an upward modification of a child supportamount that complied with the CSSA at the time the agreement was entered into must besupported by specific evidence of an unanticipated change in circumstances or a showing that thechildren's needs were not being met, which the wife failed to provide (see Matter of Boden vBoden, 42 NY2d 210 [1977]; Matter of Kerner v Kerner, 46 AD3d 683 [2007]). Accordingly, theFamily Court erred in increasing the amount of child support to $2,296.50 per month (see Weill v Weill, 17 AD3d 666[2005]). Fisher, J.P., Covello, Angiolillo and Belen, JJ., concur.