| Matter of Nenninger v Kelly |
| 2016 NY Slip Op 04717 [140 AD3d 961] |
| June 15, 2016 |
| Appellate Division, Second Department |
[*1]
| In the Matter of Nicole Nenninger,Appellant, v Paul Kelly, Respondent. |
Nicole Nenninger, Port Jefferson, NY, appellant pro se.
Quatela Hargraves & Chimeri, PLLC, Hauppauge, NY (Christopher J. Chimeri,Dawn L. Hargraves, and Nicole J. Brodsky of counsel), for respondent.
Appeal from an order of the Family Court, Suffolk County (Martha L. Luft, J.), datedFebruary 10, 2015. The order denied the mother's objections to so much of an order ofthat court (Barbara Lynaugh, S.M.), dated December 11, 2014, as denied that branch ofher motion which was to disqualify the father's attorney and directed the dismissal of herpetition for an upward modification of the father's child support obligation.
Ordered that the order dated February 10, 2015, is affirmed, without costs ordisbursements.
The parties, who have three children, entered into a stipulation of settlement onJanuary 6, 2009, which was incorporated but not merged into their judgment of divorceentered July 7, 2009. Pursuant to the stipulation, the parties agreed, among other things,to waive their rights under the provisions of the Child Support Standards Act (DomesticRelations Law § 240 [1-b]) (hereinafter the CSSA) that establish thepresumptive amount of child support. The stipulation set forth that the father would paychild support in the sum of $2,000 per month, which was less than the amount that wouldhave been set under the CSSA. The stipulation also set forth that the father would pay themother maintenance in the sum of $3,000 per month until October 1, 2014. Thestipulation stated that, upon the termination of the father's maintenance obligation onOctober 1, 2014, his child support obligation was to continue at the rate of $2,000 permonth, plus a cost of living adjustment based upon the increase in the Consumer PriceIndex for the northeast region for the year 2013.
In June 2014, the mother petitioned for an upward modification of the father's childsupport obligation. The mother alleged that since, pursuant to the stipulation, hermaintenance award would end on October 1, 2014, the father's child support obligationshould be recalculated pursuant to the CSSA. The mother also moved, inter alia, todisqualify the father's attorney on the ground that the father's attorney represented themother's current husband in his own child support matters, in the course of which thefather's attorney obtained confidential information related to the mother's divorce fromthe father and her finances. The father cross-moved, inter alia, for the imposition ofsanctions against the mother for making a frivolous motion, and for an award of anattorney's fee.
As relevant to this appeal, in an order dated December 11, 2014, a SupportMagistrate [*2]directed the dismissal of the mother'spetition on the ground that it failed to state a cause of action and denied that branch ofthe mother's motion which was to disqualify the father's attorney. The mother then filedobjections to those portions of the Support Magistrate's order. In an order dated February10, 2015, the Family Court denied the mother's objections. The mother appeals.
The parties' stipulation of settlement, which was incorporated but not merged into theparties' judgment of divorce, set forth the father's child support obligation, and wasexecuted before the effective date of the 2010 amendments to Family Court Act§ 451 (see L 2010, ch 182, § 13). "Therefore, in orderto establish [her] entitlement to an upward modification of the [father's] child supportobligation, the [mother] had the burden of establishing an unanticipated andunreasonable change in circumstances resulting in a concomitant need, or that theagreement was not fair and equitable when entered into" (Zaratzian v Abadir, 128 AD3d953, 953 [2015]; see Matter of Gravlin v Ruppert, 98 NY2d 1, 5 [2002]; Kandus v Forlenza, 132 AD3d815, 815 [2015]; Matter ofSuchan v Eagar, 121 AD3d 910 [2014]; Nelson v Nelson, 75 AD3d 593, 593-594 [2010]). Here,the allegations in the mother's petition, read in conjunction with the stipulation ofsettlement and judgment of divorce annexed thereto, were not sufficient to warrant amodification of the father's child support obligation, as the cessation of the father'smaintenance obligation on October 1, 2014, was not an unanticipated circumstance.Consequently, the Family Court properly denied the mother's objections to so much ofthe Support Magistrate's order as directed the dismissal of her petition for an upwardmodification of the father's child support obligation (see Matter of Singer v Prizer, 96 AD3d 860, 861 [2012]; cf. Matter of Milton vTormey-Milton, 133 AD3d 857, 858 [2015]; Matter of Gadalinska v Ahmed, 120 AD3d 1232,1232-1234 [2014]). Further, where there are no issues of fact, a court may dismiss apetition without conducting a hearing or enforcing the right to compulsory disclosureunder Family Court Act § 424-a (see Matter of Lagani v Li, 131 AD3d 1246, 1247-1248[2015]).
In her objections and pro se brief on appeal, the mother raised new allegations insupport of her claim that there had been a substantial and unanticipated change incircumstances warranting an upward modification of the father's child support obligation.We have not considered the merits of the mother's contentions in this regard, as theseallegations were not set forth in the mother's instant petition for an upward modificationof the father's child support obligation and, thus, are not properly before us on thisappeal. These allegations may only be properly considered in a new petition.
Moreover, the Family Court also properly denied the mother's objections to so muchof the Support Magistrate's order as denied that branch of her motion which was todisqualify the father's attorney. "Absent actual prejudice or a substantial risk thereof, theappearance of impropriety alone is not sufficient to require disqualification of anattorney" (Matter of Lovitch vLovitch, 64 AD3d 710, 711 [2009]). "A party's entitlement to be represented inongoing litigation by counsel of his or her own choosing is a valued right which shouldnot be abridged absent a clear showing that disqualification is warranted, and the movantbears the burden on the motion" (Campolongo v Campolongo, 2 AD3d 476, 476 [2003][citation omitted]; see Matter ofAaron W. v Shannon W., 96 AD3d 960, 962 [2012]). Here, given that theproceeding was capable of being resolved by a simple reading of the petition andstipulation, there was no actual prejudice or substantial risk thereof to the mother sincenone of the information purportedly obtained by the father's counsel through herrepresentation of the mother's current husband was at issue. Mastro, J.P., Dickerson,Austin and Roman, JJ., concur.