| Matter of Hirsch v Schwartz |
| 2012 NY Slip Op 02365 [93 AD3d 1114] |
| March 29, 2012 |
| Appellate Division, Third Department |
| In the Matter of Gillian A. Hirsch, Respondent-Appellant, v JeffreyB. Schwartz, Appellant-Respondent. |
—[*1] Gordon, Tepper & DeCoursey, L.L.P., Glenville (Jennifer P. Rutkey of counsel), forrespondent-appellant.
Peters, J.P. Cross appeals from an order of the Family Court of Saratoga County (Abramson,J.), entered August 31, 2010, which partially granted petitioner's application, in a proceedingpursuant to Family Ct Act article 4, for violation of a prior support order.
Petitioner (hereinafter the mother) and respondent (hereinafter the father) were divorced in2009 and have two children from the marriage (born in 2001 and 2003). The parties' 2007separation agreement, which, among other things, required the father to pay 96% of all child-careexpenses, was incorporated but not merged into their 2009 judgment of divorce. Shortlythereafter, the mother sent the father a letter offer which proposed a reduction of the father'schild-care expenses from 96% to 75%. Although the father did not sign and return the letteroffer,[FN1] he made at least two full reimbursement payments and several partial payments in the monthsthat followed.[*2]
The mother subsequently commenced this proceedingseeking to enforce the child support provisions of the judgment of divorce. In response, the fatherargued that the mother's letter offer served to modify his support obligations and that the terms ofthis subsequent agreement should be enforced. Following a trial, a Support Magistrate found thatthe letter offer constituted a valid modification of the parties' separation agreement that reducedthe father's child-care expenses to 75%, and ordered arrears in the amount of $2,625.25. Upon themother's written objections, Family Court concluded that the Support Magistrate lacked theauthority to enforce the terms of the purported modification agreement and, therefore, theprovisions in the judgment of divorce concerning the father's child-care obligations controlled.These cross appeals ensued.[FN2]
We affirm. Family Court, as a court of limited jurisdiction, may only enforce or modify childsupport provisions contained in a valid court order or judgment (see Family Ct Act§§ 422, 461 [b] [i]; § 466; Matter of Johna M.S. v Russell E.S., 10 NY3d 364, 366 [2008];Matter of Brescia v Fitts, 56 NY2d 132, 139 [1982]; Kleila v Kleila, 50 NY2d277, 282 [1980]). Thus, even assuming that the mother's letter offer constituted a validmodification of the parties' separation agreement, Family Court "does not have subject matterjurisdiction . . . [to] enforce the amended agreement which stands as an independentcontract between the parties" (Matter of Zamjohn v Zamjohn, 158 AD2d 895, 896[1990]; see Kleila v Kleila, 50 NY2d at 283; see also Merl v Merl, 67 NY2d 359,362 [1986]; Matter of Perera v Perera, 251 AD2d 885, 886 [1998]; Matter of Hiser vHiser, 175 AD2d 353, 354 [1991]). The parties' remaining contentions are either not properlybefore us, rendered academic in light of our determination or have been reviewed and found to bewithout merit.
Rose, Kavanagh, Garry and Egan Jr., JJ., concur. Ordered that the order is affirmed, withoutcosts.
Footnote 1: A signed copy was provided tothe mother after this action was commenced.
Footnote 2: Inasmuch as the mother seeksonly affirmance of Family Court's order, her cross appeal is deemed abandoned (see Mittelmark v County of Saratoga,85 AD3d 1359, 1360 n [2011]; Rose Inn of Ithaca, Inc. v Great Am. Ins. Co., 75 AD3d 737, 738 n2 [2010], lv denied 15 NY3d 713 [2010]).