Cuffee v. Miller

243 A.D.2d 563, 663 N.Y.S.2d 111, 1997 N.Y. App. Div. LEXIS 9823

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: October 14, 1997
• Status: Published

Opinion

In a proceeding to enforce a child support order pursuant to Family Court Act article 4, the mother appeals from an order of the Family Court, Orange County (Bivona, J.), entered January 9, 1997, which denied her application for an award of counsel fees.

Ordered that the order is affirmed, with costs.

In the instant proceeding to enforce a prior order granting child support, the father, pursuant to a stipulation of settlement, admitted that the violation was willful and agreed, inter alia, to make current child support payments and payments toward arrears. A dispositional order incorporating the terms of the stipulation of settlement was entered November 25, 1996. The mother’s subsequent application for an award of counsel fees was denied, and she appeals. We affirm.

Family Court Act § 454 (3) provides that an award of counsel fees is mandatory upon a finding that the failure to comply with a prior support order was willful. However, in the instant case the finding of willfulness was based upon an admission pursuant to a stipulation of settlement which made no mention of counsel fees. The mother does not seek to set aside the stipulation of settlement (see, Burkart v Burkart, 182 AD2d 798), but rather seeks to amend the agreement. As the Family Court noted, it would not have been proper, in the case before it, to amend a stipulation of settlement if the parties have not assented to such a reformation (see, Blake v Blake, 229 AD2d 509; Tinter v Tinier, 96 AD2d 556). Rosenblatt, J. P., Copertino, Krausman and Goldstein, JJ., concur.