Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

In re Brady

Supreme Court of New York, Second Department

February 21, 2018

In the Matter of Denise Ann Brady, respondent,
v.
Raymond A. White, appellant. (Proceeding Nos. 1 and 2) In the Matter of Raymond A. White, appellant,
v.
Denise Ann Brady, respondent. (Proceeding No. 3)

          N. Scott Banks, Hempstead, NY (Tammy Feman and Argun M. Ulgen of counsel), for appellant.

          Brian M. Collins, Melville, NY, for respondent.

          ALAN D. SCHEINKMAN, P.J., JOHN M. LEVENTHAL, BETSY BARROS, VALERIE BRATHWAITE NELSON, JJ.

          DECISION & ORDER

         Appeal from an order of the Family Court, Nassau County (Edmund M. Dane, J.), dated March 23, 2016. The order, insofar as appealed from, denied the father's objections to (1) an order of that court (Patricia Bannon, S.M.) dated January 12, 2016, which, after a hearing, determined that the father was in willful violation of a prior order directing payment of child support and maintenance and that he owed $57, 746.63 in child support and maintenance arrears, (2) an order of that court (Patricia Bannon, S.M.), also dated January 12, 2016, which, after a hearing, dismissed the father's petition for a downward modification of his child support and maintenance obligations, and (3) an order of that court (Patricia Bannon, S.M.), also dated January 12, 2016, directing the entry of a money judgment in favor of the mother and against the father in the principal sum of $57, 746.63 for child support and maintenance arrears.

         ORDERED that the order dated March 23, 2016, is modified, on the law and the facts, (1) by deleting the provision thereof denying the father's objections to so much of the first order dated January 12, 2016, as determined that he owed $57, 746.63 in child support and maintenance arrears and the third order dated January 12, 2016, and substituting therefor a provision granting those objections and vacating that portion of the first order dated January 12, 2016, and the third order dated January 12, 2016, and (2) by deleting the provision thereof denying the father's objections to so much of the second order dated January 12, 2016, as dismissed those branches of his petition which were for a downward modification of his child support and maintenance obligations in accordance with the parties' stipulation of settlement, and substituting therefor a provision granting those objections to the extent of determining that his child support obligation is $331 per week as of August 14, 2012, and his maintenance obligation is $265 per week as of July 23, 2013, and $250 per week as of January 1, 2014, and vacating so much of the second order dated January 12, 2016, as dismissed those branches of the father's petition which were for a downward modification of his child support and maintenance obligations in accordance with the parties' stipulation of settlement; as so modified, the order dated March 23, 2016, is affirmed insofar as appealed from, without costs or disbursements, and the matter is remitted to the Family Court, Nassau County, for a new determination of the amount of child support and maintenance arrears owed by the father in accordance herewith.

         The parties were married in 1998 and divorced in September 2005. Pursuant to their stipulation of settlement, which was incorporated but not merged into the judgment of divorce, the father agreed to pay $400 per week in child support for the parties' five children. The stipulation of settlement further provided that the father's child support obligation would be reduced to $354 per week upon the emancipation of the oldest child, and would be further reduced to amounts set forth therein upon the emancipation of each of the second, third, and fourth oldest children. Additionally, the father agreed to pay $300 per week in maintenance. Such payments were to continue until November 1, 2011, at which time his maintenance payment would be reduced to $265 per week, and would be further reduced to specified amounts pursuant to a schedule set forth therein until ceasing in 2022.

         In 2009, the father petitioned to modify his child support obligation in accordance with the stipulation of settlement on the ground that the oldest child was emancipated. In July 2009, the Family Court, upon consent, issued a modification order (hereinafter the 2009 modification order) directing the father to pay $354 per week in child support for the remaining four children and $300 per week in maintenance.

         In August 2012, the father petitioned, inter alia, for a downward modification of his child support obligation in accordance with the stipulation of settlement on the ground that the parties' second oldest child was emancipated. He withdrew that petition and filed a second petition seeking that same relief, as well as a downward modification of his child support obligation based upon a change in circumstances and a downward modification of his maintenance obligation based upon "extreme hardship." The Support Magistrate permitted the father to preserve the original filing date for issues that were raised in the first petition. Shortly thereafter, the father made an application for a downward modification of his maintenance obligation in accordance with the maintenance reduction provision in the stipulation of settlement. In December 2012, the mother filed a petition to enforce provisions of the 2009 modification order and a petition alleging that the father was in willful violation of the 2009 modification order.

         Following a hearing on the parties' petitions, in an order dated January 12, 2016, the Support Magistrate determined that the father was in willful violation of the 2009 modification order directing payment of child support and maintenance, and that he currently owed $57, 746.63 in child support and maintenance arrears. In a second order dated January 12, 2016, the Support Magistrate dismissed the father's petition for a downward modification of his child support and maintenance obligations. In a third order dated January 12, 2016, the Support Magistrate directed the entry of a money judgment in favor of the mother and against the father in the principal sum of $57, 746.63 for current child support and maintenance arrears. The father filed objections to the Support Magistrate's orders, and the Family Court denied the objections in an order dated March 23, 2016. The father appeals from the order dated March 23, 2016.

         Contrary to the father's contentions, the Support Magistrate properly dismissed that branch of his petition which was for a downward modification of his child support obligation based upon a change in circumstances. Since the parties' stipulation of settlement was executed prior to the effective date of the 2010 amendments to Family Court Act § 451 (see 2010, ch 182, § 13), in order to establish his entitlement to a downward modification of his child support obligation from that set forth in the parties' stipulation of settlement, the father had the burden of establishing a substantial and unanticipated change in circumstances (see Matter of Straker v Maynard-Straker, 133 A.D.3d 865, 866; Gribbin v Gribbin, 126 A.D.3d 938, 939). In this regard, the father failed to credibly and clearly disclose his financial circumstances (see Matter of Abizadeh v Abizadeh, 137 A.D.3d 900, 901; Matter of Rabasco v Lamar, 106 A.D.3d 1095, 1096-1097), failed to present credible evidence that his symptoms or physical condition prevented him from working (see Matter of Mikhlin v Giuffrida, 119 A.D.3d 692, 693; Matter of Gavin v Worner, 112 A.D.3d 928, 929), and did not show that he had diligently sought re-employment commensurate with his qualifications and experience (see Matter of Ealy v Levy-Hill, 140 A.D.3d 1164, 1165; Matter of Rubenstein v Rubenstein, 114 A.D.3d 798, 799). Accordingly, the father failed to satisfy his burden of establishing a substantial and unanticipated change in circumstances so as to warrant a downward modification.

         The Support Magistrate also properly denied that branch of the father's petition which was for a downward modification of his maintenance obligation based on extreme hardship. In order to obtain modification, either downward or upward, of the maintenance aspect of a stipulation of settlement that has been incorporated but not merged into a divorce judgment, a party must show extreme hardship (see Domestic Relations Law § 236[B][9][b]; Cashin v Cashin, 79 A.D.3d 963, 964; Malaga v Malaga, 17 A.D.3d 642, 643). Given the father's failure to provide any credible evidence as to his financial condition and his good-faith efforts to obtain re-employment commensurate with his earning capacity, he did not demonstrate that the maintenance obligation as set forth in the stipulation created an extreme hardship.

         The father also challenges the Support Magistrate's finding that he willfully violated an order of support. " A determination by a support magistrate that a person is in willful violation of a support order and recommending commitment has no force and effect until confirmed by a Judge of the Family Court'" (Matter of Flanagan v Flanagan, 109 A.D.3d 470, 471, quoting Matter of Dakin v Dakin, 75 A.D.3d 639, 639-640; see Family Ct Act § 439[a]). "Such a determination by a support magistrate does not constitute a final order to which a party may file written objections" (Matter of Dakin v Dakin, 75 A.D.3d at 640; see Family Ct Act § 439[e]; Matter of Flanagan v Flanagan, 109 A.D.3d at 470). Here, the Support Magistrate determined that the father was in willful violation of the 2009 modification order and recommended a four-month period of incarceration. The father then improperly filed objections to the Support Magistrate's nonfinal determination. In order to challenge the finding the he willfully violated the 2009 modification order, the father's sole remedy, which he has not pursued, was to appeal from the order of commitment dated January 28, 2016, entered upon confirmation of the Support Magistrate's determination (see Matter of Goulding v Goulding, 156 A.D.3d 634; Matter of Addimando v Huerta, 147 A.D.3d 750, 751; Matter of Ortiz-Schwoerer v Schwoerer, 128 A.D.3d 828, 830). Accordingly, the issue of whether the father willfully violated the 2009 modification order is not properly before this Court on the appeal from the order dated March 23, 2016.

         However, the Support Magistrate erred in determining that the amount of the father's child support and maintenance arrears was $57, 746.63. In this regard, the record demonstrates that the total of $57, 746.63 improperly included past arrears that were reflected in a prior money judgment against the father. Additionally, the Support Magistrate's finding that the father owed the mother $4, 133.74 as his pro rata share of add-on expenses for the children, which was included in the amount of support arrears, is unsupported by the record. The mother submitted a letter listing her incurred expenses in the amount of $5, 426, but the receipts attached do not add up to $5, 426. The amount claimed by the mother also included a $3, 750 receipt for a college course taken by the parties' second oldest child. However, the parties' stipulation of settlement required the father to contribute to college expenses when the child is attending college "on a full daytime basis and matriculated in a course of study leading to an undergraduate degree at an accredited college or university." The mother did not present evidence demonstrating that these conditions had been fulfilled with respect to the $3, 750 of claimed expenses.

         Moreover, the Support Magistrate erred in dismissing those branches of the father's petition which were for a downward modification of his child support and maintenance obligations in accordance with the provisions of the stipulation of settlement. "A stipulation of settlement entered into by parties to a divorce proceeding constitutes a contract between them subject to the principles of contract interpretation" (Matter of Miller v Fitzpatrick,147 A.D.3d 845, 846-847; see Ayers v Ayers,92 A.D.3d 623, 624; De Luca v De Luca,300 A.D.2d 342, 342). Where the intention of the parties is clearly and unambiguously set forth, effect must be given to the intent as indicated by the language used (see Slatt v Slatt,64 N.Y.2d 966, 967; Ayers v Ayers, 92 A.D.3d at 624). "A court may not write into a contract conditions the parties did not insert by adding or excising terms under the guise of construction, and ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.