| Reese v Reese |
| 2013 NY Slip Op 08066 [112 AD3d 602] |
| December 4, 2013 |
| Appellate Division, Second Department |
| Christine Reese, Respondent, v Walter Reese,Appellant. |
—[*1] Christine Reese, Oceanside, N.Y., respondent pro se.
In a matrimonial action in which the parties were divorced by judgment enteredDecember 18, 2007, the defendant appeals from an order of the Supreme Court, NassauCounty (J. Murphy, J.), entered April 5, 2012, which granted, without a hearing, thosebranches of the plaintiff's cross motion which were for an upward modification of thedefendant's child support obligation set forth in a stipulation of settlement, which wasincorporated but not merged into the judgment of divorce, and for an award of anattorney's fee.
Ordered that the order is reversed, on the facts and in the exercise of discretion, withcosts, and those branches of the plaintiff's cross motion which were for an upwardmodification of the defendant's child support obligation and for an award of an attorney'sfee are denied.
A child support agreement based on a stipulation of settlement which is incorporatedbut not merged into the divorce judgment should not be disturbed absent a showing thatthe agreement was unfair or inequitable, that there was an unanticipated change incircumstances (see Matter of Boden v Boden, 42 NY2d 210, 213 [1977]; Nelson v Nelson, 75 AD3d593, 593-594 [2010]; Matter of Mason v Papol, 63 AD3d 942 [2009]), or that thechildren's needs were no longer being met (see Matter of Gravlin v Ruppert, 98NY2d 1, 5 [2002]; Matter ofImperato v Imperato, 54 AD3d 375, 376 [2008]). Here, the plaintiff failed tomake the requisite showing to warrant an upward modification of child support.Accordingly, the Supreme Court should not have granted that branch of the plaintiff'scross motion which was for an upward modification of the defendant's child supportobligation (see Matter ofAlexander v Strathairn, 69 AD3d 930, 931 [2010]; Friedman v Friedman, 65AD3d 1081, 1082 [2009]).
Further, under the circumstances of this case, the Supreme Court should not havegranted that branch of the plaintiff's cross motion which was for an award of anattorney's fee (see Domestic Relations Law § 237 [b]; Matter ofAlexander v Strathairn, 69 AD3d at 931).
In light of our determination, the defendant's remaining contentions need not beconsidered. Rivera, J.P., Skelos, Chambers and Hall, JJ., concur.