| Nelson v Nelson |
| 2010 NY Slip Op 06163 [75 AD3d 593] |
| July 20, 2010 |
| Appellate Division, Second Department |
| Diane Nelson, Appellant, v Keith Nelson,Respondent. |
—[*1] Paula Schwartz Frome, Garden City, N.Y., for appellant.
In a matrimonial action in which the parties were divorced by judgment dated May 27, 1998,the plaintiff appeals from an order of the Supreme Court, Suffolk County (Buetow, Ct. Atty.Ref.), dated March 11, 2009, in effect, denying, after a hearing, that branch of her motion whichwas for an upward modification of the defendant's child support obligation set forth in astipulation of settlement, which was incorporated but not merged into the judgment of divorce.
Ordered that the order is affirmed, with costs.
The terms of a stipulation or settlement agreement incorporated "but not merged into ajudgment of divorce operate as contractual obligations binding on the parties" (Matter ofGravlin v Ruppert, 98 NY2d 1, 5 [2002]; see Merl v Merl, 67 NY2d 359, 362[1986]; Friedman v Friedman, 65AD3d 1081, 1082 [2009]; Matterof Costa v Costa, 64 AD3d 590, 591 [2009]). Where the parties have included childsupport provisions in the agreement, it is "presumed that in the negotiation of the terms of theagreement the parties arrived at what they felt was a fair and equitable division of the financialburden to be assumed in the rearing of the child" (Matter of Boden v Boden, 42 NY2d210, 213 [1977]). As such, "[a]bsent a showing of an unanticipated and unreasonable change incircumstances, the support provisions of the agreement should not be disturbed" (id. at213; see Matter of Gravlin v Ruppert, 98 NY2d 1, 5 [2002]; Matter of Alexander v Strathairn, 69AD3d 930, 931 [2010]; Lee vFromcheck, 67 AD3d 867 [2009]; Matter of DiGiorgi v Buda, 26 AD3d 434 [2006]; Weiss vWeiss, 294 AD2d 566, 567 [2002]). "[A] showing that the children's needs were not beingmet" may also provide a basis for an upward modification of child support (Matter of Imperato v Imperato, 54AD3d 375, 376 [2008]; see Matter of Brescia v Fitts, 56 NY2d 132, 138 [1982]; Matter of Kerner v Kerner, 46 AD3d683, 684-685 [2007]; Matter ofIanniello v Fox, 33 AD3d 1094, 1095 [2006]).
In the instant case, we agree that the plaintiff failed to show either an unanticipated andunreasonable change in circumstances since the entry of the judgment of divorce or that thechildren's needs were not being met with the current level of support (see Matter of Boden vBoden, 42 NY2d at 213; Matter of Costa v Costa, 64 AD3d at 592; Matter ofImperato v Imperato, 54 AD3d at 376; Matter of Ianniello v Fox, 33 AD3d at 1096).Accordingly, the Supreme Court properly denied the plaintiff's motion for an upwardmodification of child support (see Matter of Alexander v Strathairn, 69 AD3d at 931;Friedman v Friedman, 65 AD3d at 1082; Matter of DiGiorgi v Buda, [*2]26 AD3d at 435). Rivera, J.P., Balkin, Austin and Roman, JJ.,concur.