King v. King

79 A.D.2d 1083, 435 N.Y.S.2d 818, 1981 N.Y. App. Div. LEXIS 10016

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: January 16, 1981
• Status: Published

Opinion

Judgment unanimously affirmed, without costs. Memorandum: Although on this record

we affirm the findings of the trial court that plaintiff failed to sustain her burden of proof to set aside and cancel the separation agreement between the parties, we point out that the separation agreement did not relieve the defendant husband from his liability to support the plaintiff and she is not left without a remedy to seek alimony. Further, the separation agreement cannot bind the court as to child support. The adequacy of the support provisions is unaffected by the agreement and may be increased by the court as justice requires. The child support provisions in the separation agreement, however, should not be freely disregarded or disturbed without a showing of an unanticipated and unreasonable change in circumstances and an award in excess of the amount provided for in the separation agreement “should not be made based solely on an increase in cost where the agreement was fair and equitable when entered into” (Matter of Boden v Boden, 42 NY2d 210, 213). Accordingly, our affirmance is without prejudice to plaintiff’s application, if she is so advised, pursuant to sections 240 and 236 of the Domestic Relations Law (see L 1980, ch 281, §§ 9, 12). (Appeal from judgment of Monroe Supreme Court — divorce, separation agreement.) Present — Dillon, P. J., Cardamone, Schnepp, Callahan and Moule, JJ.