| Matter of Green v Silver |
| 2012 NY Slip Op 04748 [96 AD3d 843] |
| June 13, 2012 |
| Appellate Division, Second Department |
| In the Matter of Beth E. Green, Appellant, v Richard I.Silver, Respondent. |
—[*1] Getnick, Livingston, Atkinson, & Priore, LLP, Utica, N.Y. (Thomas L. Atkinson and JanetM. Richmond of counsel), for respondent.
In a child support proceeding pursuant to Family Court Act article 4, the mother appeals froman order of the Family Court, Nassau County (Singer, J.), dated June 27, 2011, which denied herobjections to so much of three orders of the same court all dated April 7, 2011 (Cahn, S.M.), asdenied her cross motion to limit the issues in the proceeding to the father's income, granted thatbranch of the father's motion which was to dismiss the proceeding for failure to state a cause ofaction, and dismissed the proceeding.
Ordered that the order dated June 27, 2011, is modified, on the law, by deleting the provisionthereof denying the portions of the mother's objections to so much of the orders dated April 7,2011, as granted that branch of the father's motion which was to dismiss the proceeding forfailure to state a cause of action and dismissed the proceeding, and substituting thereforprovisions granting those portions of the objections and vacating those portions of the ordersdated April 7, 2011; as so modified, the order dated June 27, 2011, is affirmed, without costs ordisbursements, and the matter is remitted to the Family Court, Nassau County, for furtherproceedings on the mother's modification petition.
In a stipulation of settlement incorporated but not merged into their judgment of divorce, theparties agreed, among other things, to "waive their right to fix the child support obligations underthe Child Support Standards Act for the period up to July 31, 2007," during which time thefather, a licensed urologist who was attending law school, would make no payments to themother for the support of the parties' child. The stipulation further provided: "Beginning August1, 2007, the Husband agrees to pay the Wife child support pursuant to the Child SupportStandards Act based upon his earnings at the time." In an April 2008, order, the father wasdirected to pay child support to the mother in the amount of $818, twice per month, which wasbased upon the father's salary at the time of $125,000 per year as a first year associate in a lawfirm. The mother commenced this proceeding in March 2010 for an upward modification,alleging that the father was now employed as a urologist earning approximately $350,000 peryear. Upon dismissal of the proceeding by the Support Magistrate on the ground that the motherfailed to state a cause of action for modification, the mother filed objections with the FamilyCourt, some of which were denied. This appeal ensued.[*2]
A review of the stipulation reveals that, with theexception of the period during which the father was finishing law school, "the parties clearly didnot intend to 'opt-out' of the [Child Support Standards Act] guidelines, but intended to followthem" (Matter of Huddleston vHuddleston, 14 AD3d 511, 512 [2005]). Accordingly, the Family Court should haveapplied the standard for modification applicable to child support obligations set by the court andnot by stipulation (see Pollack vPollack, 3 AD3d 482, 483 [2004]; former Domestic Relations Law § 236 [B] [9][b], as superceded by L 2010, ch 182, §§ 7, 13), instead of the more burdensomestandard applicable to proceedings to modify child support obligations provided for in astipulation of settlement incorporated but not merged into a judgment of divorce (see Matterof Gravlin v Ruppert, 98 NY2d 1, 5 [2002]).
Where "the original amount of child support was set by the court and not by stipulation, allthat is required for modification is a substantial change in circumstances" (Pollack vPollack, 3 AD3d at 483). Here, the father's nearly three-fold increase in earnings wassufficient to state a cause of action for modification and, therefore, the proceeding should nothave been dismissed (id.; see Matter of Chariff v Carl, 191 AD2d 795, 796[1993]). Given the procedural posture of this case, we remit the matter to the Family Court,Nassau County, for further proceedings on the mother's modification petition (see Matter ofBrescia v Fitts, 56 NY2d 132, 140-141 [1982]).
However, the Support Magistrate properly denied the mother's cross motion to limit theissues to the father's income, since "[t]he [custodial parent's] financial status is also a properconsideration for the court in making its determination" (Matter of Boden v Boden, 42NY2d 210, 212 [1977]). Skelos, J.P., Leventhal, Belen and Roman, JJ., concur.