| Matter of Baker v Baker |
| 2011 NY Slip Op 00076 [80 AD3d 849] |
| January 6, 2011 |
| Appellate Division, Third Department |
| In the Matter of Connie Baker, Appellant, v Lawrence W. Baker,Respondent. |
—[*1] Stafford, Piller, Murnane, Plimpton, Kelleher & Trombley, Plattsburgh (Ara Asadourian ofcounsel), for respondent.
Cardona, P.J. Appeal from an order of the Family Court of Franklin County (Main, Jr., J.),entered December 29, 2009, which dismissed petitioner's application, in a proceeding pursuant toFamily Ct Act article 4, for modification of a prior child support order.
The parties are the parents of two children, a son born in 1990 and a daughter born in 1993.In August 2007, the parties entered into a separation agreement wherein they agreed, amongother things, to joint legal custody of the children with "primary placement" with respondent(hereinafter the father). The parties further agreed that, notwithstanding the provisions of theChild Support Standards Act, neither party would be obligated to pay child support. Theseparation agreement was incorporated but not merged into the parties' January 2008 judgment ofdivorce. In July 2008, petitioner (hereinafter the mother) filed a modification petition seekingchild support based upon an unanticipated change in circumstances in that both children residedwith her. By decision dated January 2, 2008, a Support Magistrate granted the petition. Uponwritten objections by the father, Family Court vacated that decision and, finding no change incircumstances, dismissed the petition.
Initially, we are unpersuaded by the mother's contention that Family Court erred in not [*2]dismissing the father's objections given that they were served onlyon her and not upon her counsel. The record establishes that the mother subsequently providedher counsel with a copy of the objections and, absent any prejudice, the court appropriatelydisregarded the irregularity (see CPLR 2001; Matter of Perez v Villamil, 19 AD3d 501, 501-502 [2005]).
Turning to the merits, we note that "[a] party seeking modification of a child supportprovision derived from an agreement or stipulation incorporated but not merged into a divorcedecree has the burden of proving that the agreement was unfair or inequitable when entered intoor that an unanticipated and unreasonable change of circumstances has occurred resulting in aconcomitant increased need or that the needs of the children are not being adequately met" (Matter of Sidoti v Sidoti, 41 AD3d944, 944-945 [2007] [internal quotation marks and citations omitted]; see Matter ofBrescia v Fitts, 56 NY2d 132, 141 [1982]; Matter of Boden v Boden, 42 NY2d 210,213 [1977]). Here, the mother does not contend that the separation agreement was unfair orinequitable at the time it was entered. Rather, in support of her modification petition, the motherasserts that there has been a substantial change in circumstances inasmuch as the children nowreside with her rather than with the father, as contemplated in the parties' separation agreement.
Notably, the separation agreement specifically provides that neither party would beresponsible for the payment of child support, based in part upon the parties' equivalent incomes.Significantly, the mother does not allege in the petition, nor does the record establish, that thechildren's needs were not being met. In addition, the record demonstrates that the children'schange in residence occurred prior to the entry of the judgment of divorce. Specifically, thedaughter moved in with the mother prior to the parties signing the separation agreement and,after the stipulation but before the issuance of the judgment of divorce, the son also beganresiding with the mother. Under all of these circumstances, we find no reason to disturb FamilyCourt's decision dismissing the modification petition (see Matter of Brescia v Fitts, 56NY2d at 141; Matter of Boden v Boden, 42 NY2d at 213; Matter of Ianniello v Fox, 33 AD3d1094, 1095 [2006]).
Spain, Kavanagh, McCarthy and Egan Jr., JJ., concur. Ordered that the order is affirmed,without costs.