| Matter of Hanlon v Hanlon |
| 2009 NY Slip Op 03728 [62 AD3d 702] |
| May 5, 2009 |
| Appellate Division, Second Department |
| In the Matter of Jill Susan Hanlon, Respondent, v RichardJoseph Hanlon, Jr., Appellant. |
—[*1] Buonamici & Laraus, LLP, White Plains, N.Y. (Lawrence B. Laraus of counsel), forrespondent.
In a child support proceeding pursuant to Family Court Act article 4, the father appeals, aslimited by his brief, from so much of an order of the Family Court, Westchester County (Edlitz,J.), entered July 1, 2008, as denied his objection to so much of an order of the same court(Cabanillas-Thompson, S.M.), entered March 4, 2008, as, after a hearing, fixed his arrears forchild support for the years 2002 through 2006 in the sum of $217,368.89.
Ordered that the order is reversed insofar as appealed from, on the law, without costs ordisbursements, the father's objection is sustained, so much of the order entered March 4, 2008, asfixed his arrears for child support for the years 2002 through 2006 in the sum of $217,368.89 isvacated, and the matter is remitted to the Family Court, Westchester County, for furtherproceedings in accordance herewith.
In 1998, at a hearing on a petition for an order of child support, the parties stipulated that thefather would comply with certain child support obligations, including an obligation to "pay orcause to be paid as and for child support, before January 31st of each year, 25% of his adjustedgross income (as defined by the Family Court Act) above his base salary (which may be in theform of a bonus, commission or other form of deferred compensation)." At the time that theorder of support was entered, the father earned a "base salary" of approximately $100,000 perannum, with a bonus of approximately $100,000 paid in January of each year. In the yearsfollowing the entry of the order of support, the father's base salary [*2]increased substantially. When the father failed to provide themother with certain tax documents reflecting his annual income, she petitioned for an order ofenforcement of the order of support. A Support Magistrate determined that, pursuant to the orderof support, the father was obligated to pay 25% of any earnings in excess of $100,000 and, aftersubtracting the amount which the mother conceded had been paid, in the order entered March 4,2008, fixed arrears in the sum of $217,368.89. The father's objections to the Support Magistrate'sorder were subsequently denied by the Family Court. He now appeals from so much of the orderas denied his objection to so much of the Support Magistrate's order as fixed his arrears for childsupport for the years 2002 through 2006 in the sum of $217,368.89.
"[A]n open-court stipulation is an independent contract between the parties and will beenforced according to its terms unless there is proof of fraud, duress, overreaching, orunconscionability" (Jablonski v Jablonski, 275 AD2d 692, 693 [2000] [citation omitted];see Christian v Christian, 42 NY2d 63, 73 [1977]; Bruckstein v Bruckstein, 271AD2d 389, 390 [2000]). "Where the stipulation's terms are unambiguous, the parties' intent mustbe gleaned from the plain meaning of the words used by the parties" (Linsalato v Giuttari, 59 AD3d682, 683 [2009]; see Laba v Carey, 29 NY2d 302, 308 [1971]; Matter ofScalabrini v Scalabrini, 242 AD2d 725, 726 [1997]; Matter of Tillim v Fuks, 221AD2d 642, 643 [1995]). Here, the plain language in the order of support, entered upon theparties' stipulation, required that the father pay 25% of any income earned above his base salary,not 25% of any earnings above a fixed amount of $100,000 (see generally Grace v Nappa,46 NY2d 560, 565 [1979]; Matterof Nelson v Nelson, 48 AD3d 688 [2008]; Matter of Tillim v Fuks, 221 AD2dat 643; Bottitta v Bottitta, 194 AD2d 510, 513 [1993]; Karl v Karl, 138 AD2d354, 355 [1988]). Therefore, the Support Magistrate's calculations of the father's child supportobligations as including 25% of his income in excess of $100,000 were incorrect. Accordingly,we reverse the order entered July 1, 2008, insofar as appealed from, sustain the father's objectionto so much of the Support Magistrate's order entered March 4, 2008, as fixed his arrears for childsupport for the years 2002 through 2006 in the sum of $217,368.89, vacate so much of theSupport Magistrate's order entered March 4, 2008, as fixed his arrears for child support for theyears 2002 through 2006 in the sum of $217,368.89, and remit the matter to the Family Court,Westchester County, for a calculation of the correct child support obligation for the years 2002through 2006, and the entry of an appropriate order regarding arrears and the father's ongoingchild support obligation.
The father's remaining contentions are without merit. Rivera, J.P., Covello, Dickerson andChambers, JJ., concur.