Carey v. Carey

Appellate Division of the Supreme Court of New York

Carey v. Carey

122 A.D.2d 325, 504 N.Y.S.2d 297, 1986 N.Y. App. Div. LEXIS 59661

CourtAppellate Division of the Supreme Court of the State of New York

DecidedJuly 3, 1986

StatusPublished

This text of 122 A.D.2d 325 (Carey v. Carey) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Carey v. Carey, 122 A.D.2d 325, 504 N.Y.S.2d 297, 1986 N.Y. App. Div. LEXIS 59661 (N.Y. Ct. App. 1986).

Pincite

Opinion

— Mikoll, J.

Appeal from an order of the Supreme Court at Special Term (Doran, J.), entered July 1, 1985 in Essex County, which denied defendant’s motion to modify a prior judgment of divorce.

The parties were divorced on March 18, 1985. They had previously entered into a stipulation of separation which was reduced to a judgment of separation on July 18, 1980 and ultimately was incorporated into the judgment of divorce. Also included in the judgment of divorce was an award of custody of the parties’ five children to defendant; visitation was denied to plaintiff who was ordered to pay child support of $400 a month or $80 a month per child.

Defendant sought modification of the judgment, asking for an award of child support retroactive to the date when she first sought child support, that is, by the interposition of her answer on November 1, 1982 to plaintiff’s divorce complaint. Special Term denied the motion on authority of Carner v Carner (85 AD2d 589), finding that the instant matter does not fall within Domestic Relations Law § 236 (B) (eff July 19, 1980) but rather under former section 236, which permitted the court to decide the commencement date of support.

We agree. The parties’ separation agreement fully settled property rights, child support and visitation matters. Retroactive application of Domestic Relations Law § 236 (B) is proscribed under such circumstances (see, Carner v Carner, supra, p 590).

[326]*326Domestic Relations Law § 236 (B) (3) states in relevant part that "[njothing in this subdivision shall be deemed to affect the validity of any agreement made prior to the effective date of this subdivision”. Special Term’s order took into account the cessation of certain payments plaintiff was receiving as a veteran upon the granting of the divorce and ordered child support from that time forward. The decision was in conformity with the law.

Order affirmed, without costs. Mahoney, P. J., Main, Mikoll, Yesawich, Jr., and Levine, JJ., concur.

Free access — add to your briefcase to read the full text and ask questions with AI

— Mikoll, J.

Appeal from an order of the Supreme Court at Special Term (Doran, J.), entered July 1, 1985 in Essex County, which denied defendant’s motion to modify a prior judgment of divorce.

The parties were divorced on March 18, 1985. They had previously entered into a stipulation of separation which was reduced to a judgment of separation on July 18, 1980 and ultimately was incorporated into the judgment of divorce. Also included in the judgment of divorce was an award of custody of the parties’ five children to defendant; visitation was denied to plaintiff who was ordered to pay child support of $400 a month or $80 a month per child.

Defendant sought modification of the judgment, asking for an award of child support retroactive to the date when she first sought child support, that is, by the interposition of her answer on November 1, 1982 to plaintiff’s divorce complaint. Special Term denied the motion on authority of Carner v Carner (85 AD2d 589), finding that the instant matter does not fall within Domestic Relations Law § 236 (B) (eff July 19, 1980) but rather under former section 236, which permitted the court to decide the commencement date of support.

We agree. The parties’ separation agreement fully settled property rights, child support and visitation matters. Retroactive application of Domestic Relations Law § 236 (B) is proscribed under such circumstances (see, Carner v Carner, supra, p 590).

[326]*326Domestic Relations Law § 236 (B) (3) states in relevant part that "[njothing in this subdivision shall be deemed to affect the validity of any agreement made prior to the effective date of this subdivision”. Special Term’s order took into account the cessation of certain payments plaintiff was receiving as a veteran upon the granting of the divorce and ordered child support from that time forward. The decision was in conformity with the law.

Order affirmed, without costs. Mahoney, P. J., Main, Mikoll, Yesawich, Jr., and Levine, JJ., concur.

Cite This Page — Counsel Stack

Bluebook (online)

122 A.D.2d 325, 504 N.Y.S.2d 297, 1986 N.Y. App. Div. LEXIS 59661, Counsel Stack Legal Research, https://law.counselstack.com/opinion/carey-v-carey-nyappdiv-1986.

Opinion

Related

Cite This Page — Counsel Stack