Gustin v. Gustin

188 A.D.2d 513, 591 N.Y.S.2d 435, 1992 N.Y. App. Div. LEXIS 14414

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 14, 1992
• Status: Published

Opinions

In a matrimonial action in which the parties were divorced by judgment dated June 23, 1976, the plaintiff mother appeals from an order of the Supreme Court, Nassau County (Yachnin, J.), dated June 14, 1990, which denied her motion for upward modification of child support.

Ordered that the order is affirmed, with costs.

The plaintiff mother and the defendant father were divorced in 1976 pursuant to a stipulation of settlement, which was not merged into their judgment of divorce. The parties had one daughter, then five years of age. Under the terms of the stipulation, the father was to pay the mortgage and real estate taxes on the marital home in full satisfaction of his child support obligations. The stipulation was silent as to who would pay for the daughter’s college expenses. When the daughter reached college age, the mother brought this motion to increase her father’s child support payments to require him to pay all of his daughter’s private college expenses. The father responded that he had been voluntarily paying one-half of his daughter’s college expenses. The mother’s motion was denied without a hearing.

The court did not improvidently exercise its discretion in denying the requested relief. The mother’s claim was essentially premised on two grounds: first, that the father was more financially able to pay for their daughter’s college costs, and second, that the parties’ daughter had special educational needs. We note that the stipulation of settlement was fair and equitable when made. There has been no unforeseen change in circumstances and a concomitant showing of need. Accordingly, there is no reason to modify the defendant’s child support obligation (see, Matter of Brescia v Fitts, 56 NY2d 132; Matter of Boden v Boden, 42 NY2d 210).

Moreover, the mother’s claims that the parties’ daughter had special educational needs is simply not supported by the record. The mother made conclusory allegations that simply because her daughter did not excel in school, she required special education at an expensive private college. The father has voluntarily paid one-half of the daughter’s college education expenses up to now and we see no reason to disturb this voluntary arrangement. Should he fail to continue to make such payments, the mother may make an appropriate application at that time. We also reject the mother’s contention that she was entitled to a hearing (see, Barravecchio v Barravecchio, 138 AD2d 659; Senzer v Senzer, 132 AD2d 694). Balletta, J. P., Rosenblatt and Pizzuto, JJ., concur.