| Matter of Savini v Burgaleta |
| 2010 NY Slip Op 00266 [69 AD3d 734] |
| January 12, 2010 |
| Appellate Division, Second Department |
| In the Matter of Elizabeth Savini, Respondent, v EugeneBurgaleta, Appellant. (Proceeding No. 1.) In the Matter of Eugene Burgaleta, Appellant, vElizabeth Savini, Respondent. (Proceeding No. 2.) |
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In two related child support proceedings pursuant to Family Court Act article 4, the fatherappeals from an order of the Family Court, Rockland County (Warren, J.), entered December 2,2008, which denied his objections to an order of the same court (Miklitsch, S.M.), entered April25, 2008, which, after a hearing, inter alia, set his child support obligation at $295.19 per week,fixed his child support arrears as of April 25, 2008, at $92,323.82 and, upon directing him to paycounsel fees and costs to the mother in the total sum of $20,712.05, awarded that sum to her.
Ordered that the order entered December 2, 2008, is modified, on the law and the facts, (1)by deleting the provision thereof denying the father's objections to so much of the order enteredApril 25, 2008, as fixed his child support arrears as of April 25, 2008, at $92,323.82 andsubstituting therefor provisions (a) granting those objections, (b) vacating the provision of theorder entered April 25, 2008, fixing the child support arrears at $92,323.82, and (c) determiningthat there are no child support arrears due to the mother as of April 25, 2008, (2) by deleting theprovision thereof denying the father's objections to so much of the order entered April 25, 2008,as directed him to pay counsel fees and costs to the mother in the total sum of $20,712.05 andsubstituting therefor provisions (a) granting those objections, (b) vacating the provisions of theorder entered April 25, 2008, directing the father to pay counsel fees and costs to the mother inthe total sum of $20,712.05, and (c) directing the father to pay counsel fees and costs to themother in the total sum of $10,244.44, and (3) by adding thereto a provision dismissing so muchof the mother's petition as sought to enforce the child support provisions in the parties' judgmentof divorce; as so modified, the order entered December 2, 2008, is affirmed insofar as appealedfrom, without costs or disbursements.
As the child support provisions in the parties' judgment of divorce dated August 22, 1997,were vacated by an order of the Supreme Court, Rockland County dated May 11, 2007, whichwas affirmed by decision and order of this Court dated May 20, 2008 (see Burgaleta v Burgaleta, 51 AD3d842 [2008]), so much of the mother's petition as sought to enforce the child supportprovisions in the parties' [*2]judgment of divorce must bedismissed.
In a handwritten agreement dated April 19, 1997, the parties agreed, among other things, thatstarting with the January 28, 1998, payment the mother would accept the sum of $200 per weekas child support. The agreement provided that the mother would not "file suit for any monies thatwould make up the difference between the child support percentage of 29% of [the father's]weekly income and the two hundred dollar weekly payment." This agreement was a valid waiverby the mother of her right to file suit to recover child support above the sum of $200 per weekwhile the waiver was in effect. Since the father complied with the agreement, no arrears accruedwhile it was in effect. The mother validly withdrew from the agreement by filing her childsupport petition dated August 11, 2004 (see Burgaleta v Burgaleta, 51 AD3d 842 [2008]; Daratany v Daratany, 18 AD3d496 [2005]; Matter of O'Connor v Curcio, 281 AD2d 100, 103 [2001]; cf. Matter of Hang Kwok v Xiao YanZhang, 35 AD3d 467 [2006]).
Contrary to the father's contentions, the Support Magistrate's determination of the amount ofthe father's weekly child support obligations accruing after the mother's August 11, 2004, filingof the support obligation petition, as well as the Support Magistrate's determinations as to otheramounts owed the mother, were properly based upon the application of the 29% "child supportpercentage" (Family Ct Act § 413 [1] [b] [3] [iii]) to the combined parental income over$80,000 (see Domestic Relations Law § 240 [1-b] [c] [1], [2]; Family Ct Act§ 413 [1] [b] [3]; [c], [f]; Cimonsv Cimons, 53 AD3d 125, 127 [2008]; Matter of Spratt v Fontana, 51 AD3d 1034 [2008]; cf. Zarembav Zaremba, 222 AD2d 500 [1995]). Based upon the application of the 29% child supportpercentage, the father underpaid the total sum of $2,521.32 from November 8, 1996, throughJanuary 28, 1998, the effective date of the agreement. However, the total owed by the father forchild support from August 11, 2004, until the date of the Support Magistrate's order was only$73,601.19, and the amount he actually paid during that time was $86,590.12, leaving anoverpayment of $12,988.93. Deducting the underpaid sum of $2,521.32 from the overpaid sumof $12,988.93 leaves a total sum of $10,467.61 overpaid by the defendant. Deducting that sumfrom the total sum of $20,712.05 which the Support Magistrate directed the father to pay ascounsel fees and costs, the father should be directed to pay the total sum of $10,244.44 ascounsel fees and costs.
The father's remaining contentions either have been rendered academic or are without merit.Rivera, J.P., Florio, Dickerson and Austin, JJ., concur.