| Zaratzian v Abadir |
| 2015 NY Slip Op 04309 [128 AD3d 953] |
| May 20, 2015 |
| Appellate Division, Second Department |
[*1]
| Annabelle Zaratzian, Respondent, v AdelRamsey Abadir, Appellant. |
Larry M. Carlin, New York, N.Y. (Dana M. Bunting of counsel), for appellant.
Harold R. Burke, West Harrison, N.Y., for respondent.
Appeal from an order of the Supreme Court, Westchester County (Colangelo, J.),dated January 15, 2013. The order, insofar as appealed from, denied those branches ofthe defendant's cross motion which were to modify the child support provisions of theparties' separation agreement so as to require the plaintiff to pay him child supportpursuant to the Child Support Standards Act, and for leave to enter a money judgmentagainst the plaintiff for reimbursement of expenses relating to private school tuition,summer camp, and after school programs for the parties' children.
Ordered that the order is affirmed insofar as appealed from, with costs.
The parties' separation agreement, which was incorporated but not merged into theparties' judgment of divorce, set forth the parties' child support obligations, and wasexecuted prior to the effective date of the 2010 amendments to Domestic Relations Law§ 236 (B) (9) (b) (2) (see L 2010, ch 182, § 13).Therefore, in order to establish his entitlement to an upward modification of the plaintiffmother's child support obligation, the defendant father had the burden of establishing anunanticipated and unreasonable change in circumstances resulting in a concomitant need,or that the agreement was not fair and equitable when entered into (see Matter ofGravlin v Ruppert, 98 NY2d 1, 5 [2002]; Merl v Merl, 67 NY2d 359, 362[1986]; Matter of Brescia v Fitts, 56 NY2d 132, 138 [1982]; Matter of Bodenv Boden, 42 NY2d 210, 213 [1977]).
Contrary to the defendant's contention, the Supreme Court properly concluded that achange in custody, which gave the defendant sole custody of two of the parties' threechildren, was not an unanticipated change of circumstances. The separation agreementexpressly considered this possibility, and contains a provision that allows the defendantto seek a downward modification of his own child support obligation to the plaintiff, butdoes not allow him to seek child support from the plaintiff. Moreover, it is undisputedthat the defendant, whose annual salary is approximately four times that of the plaintiff,is able to adequately provide for the subject children's needs, so their bests interests donot require a modification of the support provisions of the separation agreement (cf.Matter of Gravlin v Ruppert, 98 NY2d at 5; Matter of Brescia v Fitts, 56NY2d at 139-140; Matter of Boden v Boden, 42 NY2d at 212). Furthermore,there is no question that the agreement [*2]was fair andequitable when entered into. Although the plaintiff received child support from thedefendant for all three children even though the parties shared joint custody, she alsorelinquished her rights to equitable distribution of the marital assets, and the defendant'schild support obligation was considerably less than it would have been if calculatedunder the Child Support Standards Act (see Domestic Relations Law§ 240).
The Supreme Court also properly concluded that the defendant failed to establishthat, pursuant to the separation agreement, he was entitled to reimbursement from theplaintiff for certain expenses relating to the subject children's private school tuition,summer camp, and after school programs. Although the plaintiff is obligated to payone-third of such expenses under the terms of the separation agreement, the agreementalso states that neither party will incur any such expenses without the other party'sconsent. The defendant did not seek or obtain the plaintiff's consent before incurringthose expenses, and thus is not entitled to reimbursement under the plain terms of theagreement.
The defendant's remaining contentions either need not be considered in light of ourdetermination or are improperly raised for the first time on appeal. Rivera, J.P., Roman,Sgroi and Duffy, JJ., concur.