| Matter of Costa v Costa |
| 2009 NY Slip Op 05772 [64 AD3d 590] |
| July 7, 2009 |
| Appellate Division, Second Department |
| In the Matter of Thomas Costa, Respondent, v Lucie P.Costa, Appellant. |
—[*1] Thomas Costa, Newburgh, N.Y., respondent pro se.
In a child support proceeding pursuant to Family Court Act article 4, the mother appeals, aslimited by her brief, from so much of an order of the Family Court, Orange County (Klein, J.),dated November 10, 2008, as denied her objections to an order of the same court (Krahulik,S.M.) dated September 2, 2008, which, after a hearing, directed her to pay child support in theamount of $88 per week and to contribute a 50% share of the college expenses and unreimbursedmedical expenses of the parties' son Zachary.
Ordered that the order dated November 10, 2008 is reversed insofar as appealed from, on thelaw and the facts, without costs or disbursements, the objections are granted, and the matter isremitted to the Family Court, Orange County, for further proceedings in accordance herewith.
The parties entered into a separation agreement which was incorporated but not merged intothe judgment of divorce. The separation agreement provided that the father would not pay childsupport to the mother and the mother would not pay child support to the father. Pursuant to theseparation agreement, it was the mother's responsibility to provide for the parties' older sonAlexander and the father's responsibility to provide for the parties' younger son Zachary.Approximately 10 years after entering into the separation agreement, the father filed a petitionseeking, inter alia, child support from the mother, and seeking to enforce the terms of theseparation agreement and judgment of divorce insofar as they pertained to the sharing ofZachary's college expenses.
"The terms of a separation agreement incorporated but not merged into a judgment ofdivorce operate as contractual obligations binding on the parties" (Matter of Gravlin vRuppert, 98 NY2d 1, 5 [2002]; see Merl v Merl, 67 NY2d 359, 362 [1986]). "Where,as here, the parties have included child support provisions in their separation agreement, thecourt should consider these provisions as between the parties and the stipulated allocation offinancial responsibility should not be freely disregarded" (Matter of Boden v Boden, 42NY2d 210, 212-213 [1977]). Since the instant "dispute is directed solely to readjusting therespective obligations of the parents to support their child" (Matter of Brescia v Fitts, 56NY2d 132, 139 [1982]; see Matter ofKerner v Kerner, 46 AD3d 683, 684 [2007]), a child support award in excess of thatprovided for in the separation agreement should not be made "[u]nless there has been anunforeseen change in circumstances and a concomitant showing of need" (Matter of Boden vBoden, 42 NY2d at 213; see Matter of Gravlin v Ruppert, 98 NY2d at 5).[*2]
The father failed to demonstrate an unreasonable andunanticipated change in circumstances since the time of the separation agreement to justify amodification of the child support obligations (see Matter of Arciniega v Arciniega-Luizzi, 48 AD3d 677 [2008]).While the father claimed that he sustained a loss of income in 2007 because he became disableddue to back problems and could no longer work in his construction business, he did not presentany medical evidence to support his claim, nor any evidence that he made any efforts to replacehis lost income by attempting to obtain another position with comparable compensation. He alsofailed to demonstrate that he could not work at another job (see Matter of Awwad v Awwad, 62 AD3d 695 [2009]; Matter of Ferrara v Ferrara, 52 AD3d599 [2008]; Matter of Terjesen vTerjesen, 29 AD3d 705 [2006]). Moreover, there was no persuasive evidence that thepurported unanticipated change significantly altered the fairness of the original agreement (see Matter of Ianniello v Fox, 33AD3d 1094, 1095 [2006]). Accordingly, the Support Magistrate improperly directed themother to pay child support and 50% of Zachary's unreimbursed medical expenses to the father.
Pursuant to the separation agreement, the parties agreed to contribute to "any and allpost-high school educational expenses incurred on behalf of the children to the extent that eachof them is able to do so." The separation agreement defined such expenses as, inter alia, "tuition,room and board, books, supplies, application fees and activity fees." Accordingly, the separationagreement reveals a clear intent of the parties to contribute to the college expenses of thechildren to the extent each is able to do so (see Washington v Washington, 56 AD3d 463, 464 [2008]).However, at the hearing there was no credible evidence regarding the amount of Zachary'scollege expenses. Therefore, there is an insufficient record to determine whether the mother isfinancially able to pay a 50% share of such college expenses. Consequently, we remit the matterto the Family Court, Orange County, for a new hearing and determination as to amount ofcollege expenses incurred by Zachary, and the percentage which the mother is financially able topay for such expenses. Skelos, J.P., Angiolillo, Chambers and Lott, JJ., concur.