| Schneider v Schneider |
| 2012 NY Slip Op 06070 [98 AD3d 732] |
| August 29, 2012 |
| Appellate Division, Second Department |
| Michael Schneider, Appellant, v Katherine Schneider,Respondent. |
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In an action for a divorce and ancillary relief, the plaintiff appeals, as limited by his brief,from stated portions of an order of the Supreme Court, Westchester County (Neary, J.), enteredJuly 7, 2011, which, inter alia, denied that branch of his motion which was, in effect, to modifythe child support provisions in the parties' stipulation of settlement dated November 28, 2005, soas to require the defendant to pay him child support for the parties' younger son in accordancewith the Child Support Standards Act, and granted that branch of the defendant's cross motionwhich was to direct the entry of a money judgment against him in the sum of $6,660.45,representing certain child support arrears.
Ordered that the order is modified, on the law, by deleting the provision thereof granting thatbranch of the defendant's cross motion which was to direct the entry of a money judgment in thesum of $6,660.45, and substituting therefor a provision granting that branch of the defendant'scross motion to the extent of directing the entry of a money judgment in favor of the defendant inthe sum of $4,981, and otherwise denying that branch of the cross motion; as so modified, theorder is affirmed insofar as appealed from, without costs or disbursements.
In a stipulation of settlement dated November 28, 2005, the parties, who had two sonstogether, agreed, inter alia, that the defendant would have primary residential custody of thechildren. The parties also agreed that the plaintiff would pay the defendant the sum of $2,000 permonth in child support until the emancipation of a child, whereupon the plaintiff's monthly childsupport obligation would be reduced by 32%. Finally, the parties agreed that they would each payone half of certain expenses for the children.
Approximately 4½ years after the parties' marriage was dissolved, the parties' youngerson moved out of the defendant's residence and moved into the plaintiff's residence.Subsequently, the plaintiff moved, inter alia, in effect, to modify the child support provisions ofthe stipulation to require the defendant to pay him child support for that son in accordance withthe Child Support Standards Act. The defendant, who alleged that the plaintiff failed to pay hisshare of certain expenses of the children, cross-moved, among other things, to direct the entry ofa money judgment in her favor in the sum of $6,660.45, representing child support arrears.
As the Supreme Court correctly determined, the plaintiff failed to demonstrate that thestipulation should be modified to adjust the parties' respective child support obligations so as to[*2]require the defendant to pay the plaintiff child support for theyounger son. The plaintiff did not claim that the younger son's change of residence was "anunanticipated and unreasonable change in circumstances," and failed to show that the youngerson's needs were not being met (Matter of Brescia v Fitts, 56 NY2d 132, 138 [1982];see Matter of Boden v Boden, 42 NY2d 210, 212-213 [1977]; Bruney v Hollingsworth, 83 AD3d755, 756 [2011]). Accordingly, the Supreme Court properly denied that branch of theplaintiff's motion which was, in effect, to modify the child support provisions of the stipulation.
However, we agree with the plaintiff that the Supreme Court erred in granting that branch ofthe defendant's cross motion which was to direct the entry of a money judgment in her favor inthe sum of $6,660.45. Although the defendant essentially alleged that the plaintiff owed her$212.50 for his share of the cost of an SAT tutor, the defendant failed to sufficiently documentthat expense (cf. Gnoza v Gnoza, 293 AD2d 571, 572 [2002]). In addition, although thedefendant alleged that the plaintiff owed her $1,466.95 for his share of the cost of "[s]ports fees,equipment and related expenses," the defendant failed to, inter alia, establish that the plaintiffwas obligated to pay for those expenses. Accordingly, the Supreme Court improperly directed theaward to the defendant of those two sums.
The plaintiff's remaining contentions are either without merit or not properly before thisCourt. Skelos, J.P., Dillon, Leventhal and Sgroi, JJ., concur.