| Samuelson v Samuelson |
| 2013 NY Slip Op 05197 [108 AD3d 612] |
| July 10, 2013 |
| Appellate Division, Second Department |
| Aaron Joseph Samuelson, Appellant, v BrookeSamuelson, Respondent. |
—[*1] Warren S. Hecht, Forest Hills, N.Y., for respondent.
In a matrimonial action in which the parties were divorced by judgment datedJanuary 5, 2011, the plaintiff appeals from an order of the Supreme Court, QueensCounty (Harrington, J.), entered July 24, 2012, which denied his motion for an award ofbasic child support for the parties' son.
Ordered that the order is affirmed, with costs.
Pursuant to the parties' stipulation of settlement entered into in 2009, the plaintiffagreed to pay the defendant basic child support in the sum of $1,150 per month for theparties' two children, until the occurrence of an "emancipation event," defined, inter alia,as a "change in custody." The stipulation further provided that, in the event of an"emancipation event" with respect to one of the children, the plaintiff's basic childsupport obligation would be reduced to $846 per month, and his maximum obligation topay certain shared "add-on" expenses for unreimbursed health care expenses, child careexpenses, and educational or education-related expenses, would be reduced from $300per month to $150 per month.
In March 2011, the parties agreed to transfer custody of their son from the defendantto the plaintiff. That transfer of custody was an "emancipation event" pursuant to the2009 stipulation. In 2012, the plaintiff moved for an award of child support for theparties' son from the defendant, to be "credited against my child support payments re ourminor daughter," on the ground that he was on the verge of personal bankruptcy. Thedefendant, in opposition, asserted that the parties' child support obligations were set bystipulation, and the plaintiff failed to establish an unanticipated and unreasonable changein circumstances or that the needs of the child in the plaintiff's custody were not beingmet. The plaintiff in reply noted that his rent was $1,500 per month, and that he hadincurred certain unreimbursed medical and educational expenses on behalf of the child inhis custody. The Supreme Court denied the motion on the ground that the parties'obligations were set by agreement, and the plaintiff had failed to establish anunanticipated and unreasonable change in circumstances, or that the child's needs werenot being met.
The parties' agreement was binding, unless the plaintiff was able to demonstrate an[*2]unanticipated and unreasonable change ofcircumstances, or that the needs of the child in his custody were not being met (seeMatter of Brescia v Fitts, 56 NY2d 132, 138 [1982]; Matter of Boden vBoden, 42 NY2d 210, 212 [1977]; Schneider v Schneider, 98 AD3d 732 [2012]). Since thestipulation set forth the plaintiff's child support obligation in the event of a change ofcustody of one of the children, a change in custody of one of the children could not beconsidered unanticipated (see Gluege v Rybicki, 217 AD2d 603 [1995]; seealso DePinto v Ashley Scott, Inc., 222 AD2d 288, 289 [1995]).
With respect to the child's needs, the plaintiff failed to submit a net worth statement.Further, the plaintiff's statements with respect to the needs of the child were raised in hisreply papers and, therefore, were not properly before the court (see Penavic v Penavic, 88AD3d 671, 672 [2011]).
Accordingly, the Supreme Court properly denied the plaintiff's motion for an awardof basic child support for the parties' son.
The plaintiff's remaining contentions are either not properly before this Court orwithout merit. Angiolillo, J.P., Hall, Roman and Hinds-Radix, JJ., concur.