| Stevens v Stevens |
| 2011 NY Slip Op 01830 [82 AD3d 873] |
| March 8, 2011 |
| Appellate Division, Second Department |
| Deirdre Stevens, Respondent, v Thomas Stevens,Appellant. |
—[*1] John Ray, Miller Place, N.Y., for respondent.
In a matrimonial action in which the parties were divorced by judgment entered April 23,2002, the defendant appeals, as limited by his brief, from so much of an order of the SupremeCourt, Suffolk County (McNulty, J.), dated June 30, 2009, as, after a hearing, denied that branchof his motion which was to modify the judgment by vacating the provision obligating him to paychild support for the parties' daughter, and granted that branch of his motion which was toenforce an obligation to pay a certain loan the plaintiff had agreed to pay pursuant to thestipulation of settlement which was incorporated, but not merged, into the divorce judgment,only to the extent of determining that the plaintiff must pay only $4,500 of the principal and onlythe interest accrued from January 5, 2007.
Ordered that the order is affirmed insofar as appealed from, with costs.
Child support payments may be waived prospectively, before the obligation to make suchpayments has accrued (see Matter of O'Connor v Curcio, 281 AD2d 100 [2001]). Theparty claiming a waiver must come forward with evidence of a voluntary and intentionalrelinquishment of a known and otherwise enforceable right to child support (see Matter of Barrio v Montanez, 71AD3d 1140 [2010]). We agree with the Supreme Court that while the evidence supports afinding that the plaintiff waived her right to child support for the parties' son, upon theiragreement for the defendant to take physical custody of him, the plaintiff did not waive her rightto child support for their daughter, who continued to live with her.
Furthermore, the Supreme Court providently exercised it discretion in determining that theplaintiff only was responsible for the payment of $4,500 of the principal and for interest whichaccrued on a loan she agreed to pay pursuant to the parties' stipulation of settlement, from thedate of the defendant's motion, inter alia, seeking to enforce that obligation, January 5, 2007.Mastro, J.P., Balkin, Leventhal and Miller, JJ., concur.