| Baker v Baker |
| 2011 NY Slip Op 03530 [83 AD3d 977] |
| April 26, 2011 |
| Appellate Division, Second Department |
| Erik L. Baker, Appellant, v Patricia P. Baker,Respondent. |
—[*1] Jeffrey P. Sharkey, Westbury, N.Y., for respondent.
In an action for a divorce and ancillary relief, the plaintiff appeals, as limited by his brief,from (1) so much of an order of the Supreme Court, Queens County (Strauss, J.), enteredNovember 19, 2009, as denied his cross motion to vacate the child support provisions of theparties' stipulation dated September 25, 2005, and (2) so much of a judgment of the same courtentered December 22, 2009, as, upon an order of the same court dated January 22, 2009, interalia, denying that branch of his motion which was to modify the parties' stipulation by awardinghim sole custody of the parties' child, and upon an order of the same court dated July 14, 2009,among other things, denying that branch of his motion which was for a downward modificationof his child support obligation set forth in the stipulation, and upon the order entered November19, 2009, awarded the defendant physical custody of the parties' child and directed him to paycertain child support in accordance with the stipulation.
Ordered that the appeal from the order entered November 19, 2009, is dismissed; and it isfurther,
Ordered that the judgment is affirmed insofar as appealed from; and it is further,
Ordered that one bill of costs is awarded to the defendant.
The appeal from the intermediate order dated November 19, 2009, must be dismissedbecause the right of direct appeal therefrom terminated with the entry of judgment in the action(see Matter of Aho, 39 NY2d 241, 248 [1976]). The issues raised on the appeal from theorder are brought up for review and have been considered on the appeal from the judgment(see CPLR 5501 [a] [1]).
The issues raised by the plaintiff with respect to custody on the appeal from the judgmenthave been raised and resolved, or could have been raised, in connection with a prior appeal (see Baker v Baker, 66 AD3d 722,723 [2009]). Under such circumstances, generally, further review of such issues is precluded (see e.g. Allison v Allison, 60 AD3d711, 711 [2009]; Duffy v Holt-Harris, 260 AD2d 595, 595-596 [1999]). The plaintiffhas asserted no basis for this Court to deviate from its prior decision, nor has he asserted anyother basis to reverse the judgment insofar as it awarded the [*2]defendant physical custody of the parties' child.
Contrary to the plaintiff's contention, the Supreme Court properly directed him to pay childsupport in accordance with the parties' stipulation dated September 25, 2005. First, with respectto the plaintiff's contention, in effect, that his child support obligations under the stipulationshould be vacated because the parties did not validly opt out of the Child Support Standards Actguidelines (see Domestic Relations Law § 240 [1-b]), it is clear from thestipulation, as the Supreme Court found, that the parties did not intend to opt out of thoseguidelines but, rather, agreed that the plaintiff would pay child support in accordance therewith.Accordingly, the plaintiff's contention is without merit (see Fasano v Fasano, 43 AD3d 988, 989-990 [2007]). Further, withrespect to the plaintiff's contention that he was entitled to a downward modification of his childsupport obligation as set forth in the stipulation, "he bore the burden of establishing both asubstantial and an unanticipated change of circumstances" (Matter of Belmonte v Dreher, 77 AD3d 937 [2010] [citationsomitted]). While "loss of employment may constitute a substantial and unanticipated change ofcircumstances, a party seeking a downward modification of his or her child support obligationbased upon a loss of employment has the burden of demonstrating that he or she diligently soughtto obtain employment commensurate with his or her earning capacity" (id.). Here, weagree with the Supreme Court that the plaintiff failed to satisfy that burden (see e.g. Barson v Barson, 32 AD3d872, 873 [2006]). Angiolillo, J.P., Florio, Belen and Austin, JJ., concur.