| Friedman v Friedman |
| 2009 NY Slip Op 06505 [65 AD3d 1081] |
| September 15, 2009 |
| Appellate Division, Second Department |
| Toby Warshaw Friedman, Appellant, v Edward Friedman,Respondent. |
—[*1] Weinstein, Kaplan & Cohen, P.C., Garden City, N.Y. (Alexander Mark Kaplan and RebeccaA. Provder of counsel), for respondent.
In a matrimonial action in which the parties were divorced by judgment dated May 11, 2004,the plaintiff former wife appeals, as limited by her brief, from so much of an order of theSupreme Court, Queens County (Strauss, J.), dated May 16, 2008, as denied, without a hearing,that branch of her motion which was for an upward modification of the defendant formerhusband's child support obligation pursuant to a stipulation of settlement, which wasincorporated but not merged into the judgment of divorce.
Ordered that the order is affirmed insofar as appealed from, with costs.
"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]). Wherethe parties provide for child support in the separation agreement, the court should assume thatthey have anticipated and adequately provided for the child's future needs and the terms of theagreement " 'should not be freely disregarded' " (Matter of Gravlin v Ruppert, 98 NY2dat 5, quoting Matter of Boden v Boden, 42 NY2d 210, 212-213 [1977]). Therefore,"[u]nless there has been an unforeseen change in circumstances and a concomitant showing ofneed, an award for child support in excess of that provided for in the separation agreementshould not be made . . . where the agreement was fair and equitable when enteredinto" (Matter of Boden v Boden, 42 NY2d at 213; see Engel v Jacobs, 297 AD2d657 [2002]).
"However, the needs of a child must take precedence over the terms of the agreement whenit appears that the best interests of the child are not being met" (Matter of Gravlin vRuppert, 98 NY2d at 5). Where a change of circumstances is shown which results in thechild's needs not being adequately met, an increase in child support is warranted (see Matterof Brescia v Fitts, 56 NY2d 132, 140 [1982]; Engel v Jacobs, 297 AD2d 657 [2002];Belkin v Belkin, 193 AD2d 573 [1993]).
Contrary to the plaintiff's contention, under the circumstances of this case, the increase in thedefendant's income does not constitute an unanticipated change in circumstances [*2]justifying an increase in his child support obligation (see Matterof Boden v Boden, 42 NY2d at 213; Matter of DiGiorgi v Buda, 26 AD3d 434 [2006]; Engel vJacobs, 297 AD2d at 658). Nor was there was a showing that the child's needs were notbeing adequately met (see Matter ofImperato v Imperato, 54 AD3d 375, 376 [2008]; Matter of DiGiorgi v Buda, 26AD3d at 434; Engel v Jacobs, 297 AD2d at 658). Accordingly, the Supreme Courtproperly denied, without a hearing, that branch of the plaintiff's motion which was for an upwardmodification of the defendant's child support obligation (see Belkin v Belkin, 193 AD2dat 573). Dillon, J.P., Miller, Leventhal and Chambers, JJ., concur.