| Barany v Barany |
| 2010 NY Slip Op 01750 [71 AD3d 613] |
| March 2, 2010 |
| Appellate Division, Second Department |
| Jennifer Barany, Appellant, v Stanley Barany,Respondent. |
—[*1] Stanley Barany, Lindenhurst, N.Y., respondent pro se.
In a matrimonial action in which the parties were divorced by judgment of divorce enteredMay 5, 2003, the plaintiff appeals from (1) an order of the Supreme Court, Suffolk County(McNulty, J.), dated September 2, 2008, which denied her postjudgment motion to hold thedefendant in contempt, sua sponte vacated the child support provisions of the parties' separationagreement on the ground that they did not comply with Domestic Relations Law § 240(1-b) (h), and set the matter down for a de novo hearing on the issues of child support, child careexpenses, and health care expenses, and (2) an order of the same court dated February 4, 2009,which denied her motion for leave to renew and reargue.
Ordered that the appeal from so much of the order dated February 4, 2009, as denied thatbranch of the plaintiff's motion which was for leave to reargue is dismissed, as no appeal liesfrom an order denying reargument (seeCrawn v Sayah, 31 AD3d 367 [2006]; Rivera v Toruno, 19 AD3d 473, 474 [2005]); and it is further,
Ordered that on the Court's own motion, the plaintiff's notice of appeal from so much of theorder dated September 2, 2008, as, sua sponte, vacated the child support provision of the parties'separation agreement and set the matter down for a hearing is treated as an application for leaveto appeal from those portions of the order, and leave to appeal is granted (see CPLR5701 [c]); and it is further,
Ordered that the order dated September 2, 2008, is reversed, on the law, and the matter isremitted to the Supreme Court, Suffolk County, for a new determination of the plaintiff's motionto hold the defendant in contempt; and it is further,
Ordered that the appeal from so much of the order dated February 4, 2009, as denied thatbranch of the plaintiff's motion which was for leave to renew is dismissed as academic in light ofour determination on the appeal from the order dated September 2, 2008; and it is further,
Ordered that one bill of costs is awarded to the plaintiff.[*2]
Following almost seven years of marriage, the plaintiffand the defendant were divorced by judgment entered May 5, 2003, which incorporated, but didnot merge with, the parties' separation agreement, whereby, among other things, the plaintiffretained custody of the parties' daughter, and the defendant was directed to pay child support inthe sum of $250 per week. As a result of the defendant's allegedly sporadic payments of childsupport, the plaintiff moved to hold the defendant in contempt of court pursuant to DomesticRelations Law § 245 and Judiciary Law § 753, for his contumacious failure to paychild support, thus accumulating arrears of $52,155.
Although the defendant failed to bring a cross motion or plenary action to vacate or set asidethe separation agreement, he nonetheless asserted in his opposition papers that the separationagreement's child support provisions were invalid and unenforceable for failure to comply withthe recitation requirements of the Child Support Standards Act (see Domestic RelationsLaw § 240 [1-b] [h]). The Supreme Court denied the plaintiff's contempt motion and suasponte vacated the child support provisions as unenforceable, setting the matter of child support,child care expenses, and health care expenses down for a de novo hearing. The plaintiffunsuccessfully moved for reargument and renewal of that order. These appeals ensued from theresulting orders.
Under the circumstances, the Supreme Court erred in sua sponte vacating the child supportprovisions of the parties' separation agreement. The proper vehicle for challenging the proprietyof child support provisions contained in a separation agreement or stipulation of settlementincorporated, but not merged, into a divorce judgment is by either commencing a separateplenary "action in which such relief is sought in a cause of action" or by motion within thecontext of an enforcement proceeding (Christian v Christian, 42 NY2d 63, 72 [1977]; see Makara v Makara, 65 AD3d1018, 1019 [2009], lv denied 14 NY3d 765 [2010]; Fasano v Fasano, 43AD3d 988, 990 [2007]; Calian vCalian, 28 AD3d 506, 507 [2006]; Gartley v Gartley, 15 AD3d 995, 996 [2005]; Luisi v Luisi, 6 AD3d 398, 401[2004]).
Here, the defendant neither interposed a cross motion, nor commenced a separate plenaryaction, seeking to vacate or set aside the purportedly unenforceable child support provisions (see Sloboda v Sloboda, 24 AD3d533, 534 [2005]; Jefferson vJefferson, 21 AD3d 879, 881 [2005]). Thus, the Supreme Court erred in sua spontevacating the child support provisions in the separation agreement and denying the plaintiff'scontempt motion (see Matter of Young v Young, 299 AD2d 783 [2002]). Accordingly,the matter must be remitted to the Supreme Court, Suffolk County, for a determination of theplaintiff's motion on the merits. Skelos, J.P., Santucci, Dickerson and Roman, JJ., concur.