| Cashin v Cashin |
| 2010 NY Slip Op 09466 [79 AD3d 963] |
| December 21, 2010 |
| Appellate Division, Second Department |
| James Cashin, Respondent, v Maureen Cashin,Appellant. |
—[*1] Castrovinci & Mady, Smithtown, N.Y. (Philip J. Castrovinci and Kathleen M. Egan of counsel),for respondent.
In a matrimonial action in which the parties were divorced by judgment dated December 11, 2006,the defendant former wife appeals, as limited by her brief, from so much of an order of the SupremeCourt, Suffolk County (McNulty, J.), dated September 8, 2009, as denied her motion for an award ofmaintenance and an upward modification of the child support obligation of the plaintiff former husband,and for an award of an attorney's fee.
Ordered that the order is affirmed insofar as appealed from, with costs.
The plaintiff former husband (hereinafter the plaintiff) and the defendant former wife (hereinafter thedefendant) were married on October 5, 1984. They later separated, and entered into a stipulation ofsettlement on May 9, 2006. According to the stipulation, which was, in effect, a separation agreement,the defendant had an income of approximately $25,000 per year, while the plaintiff earnedapproximately $53,000 per year. The defendant waived maintenance, stating that she wasself-supporting. The stipulation required the plaintiff to pay the defendant the sum of $1,100 per monthin child support for their unemancipated son, and the couple agreed to equally divide the son's healthcare expenses. The couple was divorced by a judgment dated December 11, 2006, whichincorporated, but did not merge the stipulation of settlement.
In May 2009 the defendant moved for an upward modification of the plaintiff's child support andhealth care payments, and for an award of maintenance. In her affidavit, the defendant asserted that shesuffered from fibromyalgia, chronic fatigue syndrome, Hashimoto's disease (a type of thyroid disorder),anxiety, and depression, as well as chronic pain. She stated that she met the Social SecurityAdministration's requirements to be classified as disabled, and submitted a doctor's report and a letterfrom the Social Security Administration to document these conditions. The defendant also asserted thatshe receives the sum of $1,018 per month in Social Security disability insurance benefits, but pays only$300 per month in rent because she lives with a friend. She also asserted that the parties' son sufferedfrom anxiety, panic attacks, germ phobias, and obsessive-compulsive disorder. The defendantsubmitted a spreadsheet outlining the son's medical expenses, which totaled $120 per month for variousphysicians' visits and prescriptions.
In an order dated September 8, 2009, the Supreme Court denied the defendant's motion for anaward of maintenance and an increase in the plaintiff's child support obligation, finding that she hadestablished neither extreme hardship, nor an unforeseen change in [*2]circumstances. The defendant appeals, and we affirm the order insofar asappealed from.
The motion court must apply the standard of extreme hardship "when disposing of an application tomodify the maintenance provision of a divorce judgment which incorporates but does not merge thereinthe terms of a stipulation of settlement" (Matter of Cohen v Seletsky, 142 AD2d 111, 119[1988]; see also Mahato v Mahato, 16AD3d 386 [2005]). Here, the defendant failed to demonstrate such extreme hardship (see Rockwell v Rockwell, 74 AD3d1045 [2010]; Malaga v Malaga, 17AD3d 642, 643 [2005]; Pintus v Pintus, 104 AD2d 866, 868 [1984]; cf. Matter ofAlexander v Alexander, 203 AD2d 949, 950 [1994]).
Where the parties provide for child support in a separation agreement, the Supreme Court shouldassume that they have anticipated and adequately provided for the child's future needs (see Matterof Gravlin v Ruppert, 98 NY2d 1, 5 [2002]; Matter of Boden v Boden, 42 NY2d 210,212-213 [1977]). "However, the needs of a child must take precedence over the terms of theagreement when it appears that the best interests of the child are not being met" (Matter of Gravlin vRuppert, 98 NY2d at 5). "Unless there has been an unforeseen change in circumstances and aconcomitant showing of need, an award for child support in excess of that provided for in theseparation agreement should not be made based solely on an increase in cost where the agreement wasfair and equitable when entered into" (Matter of Boden v Boden, 42 NY2d at 213). Nor willthe courts grant an increase in child support based solely upon a parent's increased income (seeEngel v Jacobs, 297 AD2d 657, 658 [2002]). Here, the defendant failed to demonstrate anunforeseen change in circumstances sufficient to warrant an increase in child support.
The Supreme Court providently exercised its discretion in denying the defendant's request for anaward of an attorney's fee (see Clifford v Pierce, 214 AD2d 697, 698 [1995]).
The defendant's remaining contentions are without merit. Skelos, J.P., Covello, Balkin and Sgroi,JJ., concur.