Opinion
2013-12-4
Christine REESE, respondent, v. Walter REESE, appellant.
Breiter and Gura, LLP, Garden City, N.Y. (Rona L. Gura of counsel), for appellant. Christine Reese, Oceanside, N.Y., respondent pro se.
Breiter and Gura, LLP, Garden City, N.Y. (Rona L. Gura of counsel), for appellant. Christine Reese, Oceanside, N.Y., respondent pro se.
In a matrimonial action in which the parties were divorced by judgment entered December 18, 2007, the defendant appeals from an order of the Supreme Court, Nassau County (J. Murphy, J.), entered April 5, 2012, which granted, without a hearing, those branches of the plaintiff's cross motion which were for an upward modification of the defendant's child support obligation set forth in a stipulation of settlement, which was incorporated but not merged into the judgment of divorce, and for an award of an attorney's fee.
ORDERED that the order is reversed, on the facts and in the exercise of discretion, with costs, and those branches of the plaintiff's cross motion which were for an upward modification of the defendant's child support obligation and for an award of an attorney's fee are denied.
A child support agreement based on a stipulation of settlement which is incorporated but not merged into the divorce judgment should not be disturbed absent a showing that the agreement was unfair or inequitable, that there was an unanticipated change in circumstances ( see Matter of Boden v. Boden, 42 N.Y.2d 210, 213, 397 N.Y.S.2d 701, 366 N.E.2d 791; Nelson v. Nelson, 75 A.D.3d 593, 593–594, 904 N.Y.S.2d 663; Matter of Mason v. Papol, 63 A.D.3d 942, 883 N.Y.S.2d 56), or that the children's needs were no longer being met ( see Matter of Gravlin v. Ruppert, 98 N.Y.2d 1, 5, 743 N.Y.S.2d 773, 770 N.E.2d 561; Matter of Imperato v. Imperato, 54 A.D.3d 375, 376, 862 N.Y.S.2d 585). Here, the plaintiff failed to make the requisite showing to warrant an upward modification of child support. Accordingly, the Supreme Court should not have granted that branch of the plaintiff's cross motion which was for an upward modification of the defendant's child support obligation ( see Matter of Alexander v. Strathairn, 69 A.D.3d 930, 931, 892 N.Y.S.2d 861; Friedman v. Friedman, 65 A.D.3d 1081, 1082, 885 N.Y.S.2d 720).
Further, under the circumstances of this case, the Supreme Court should not have granted that branch of the plaintiff's cross motion which was for an award of an attorney's fee ( seeDomestic Relations Law § 237[b]; Matter of Alexander v. Strathairn, 69 A.D.3d at 931, 892 N.Y.S.2d 861).
In light of our determination, the defendant's remaining contentions need not be considered. RIVERA, J.P., SKELOS, CHAMBERS and HALL, JJ., concur.