Riseley v. Riseley

173 A.D.2d 1103, 571 N.Y.S.2d 112, 1991 N.Y. App. Div. LEXIS 7821

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 30, 1991
• Status: Published

Opinions

Yesawich, Jr., J.

Appeal from an order of the Supreme Court (Bradley, J.), entered October 4, 1990 in Ulster County, which, inter alia, denied plaintiff’s cross motion for child support arrears and counsel fees.

Defendant seeks to modify certain provisions of the parties’ stipulation of settlement, which was incorporated but not merged into the parties’ 1988 divorce judgment. The judgment directed defendant to pay plaintiff child support in the amount of "$250 per week to be equally allocated between the two children”. Defendant’s obligation to pay child support for each child was to terminate upon the happening of certain specified events, none of which have occurred.

On September 17, 1989, the parties’ oldest child, Nicole, who is now 19 years of age, left plaintiff’s residence and took up residence with defendant. Two days later, defendant notified plaintiff that thenceforth his child support payments would be reduced by half. On March 1, 1990, defendant moved to modify the judgment accordingly. Supreme Court granted defendant custody of Nicole with plaintiff’s consent, altered the support obligation to $125 per week, and denied plaintiff’s cross motion for child support arrears and counsel fees. Plaintiff has appealed.

As defendant’s petition seeks to readjust the parties’ child support obligation, he must demonstrate that "an unanticipated and unreasonable change in circumstances has occurred, resulting in a concomitant need” (Matter of Brescia v Fitts, 56 NY2d 132, 138; accord, Matter of Boden v Boden, 42 NY2d 210, 213; see generally, 3 Foster, Freed and Brandes, Law and the Family New York § 20:2, at 758-759 [2d ed]). The question raised here is whether the daughter’s relocation to defendant’s residence, an event not contemplated by the parties, represents such an unanticipated change in circumstances. Unlike Loew v Loew (82 AD2d 973, affd 55 NY2d 697), where the parties’ agreement specifically provided that the noncustodial parent’s child support obligation would terminate upon the change of the child’s residence, here the agreement was tellingly silent on this issue. In view of this factual distinction, Supreme Court cannot be faulted for terminating defendant’s child support obligation as to Nicole after her unanticipated change of residence (see, Yeackel v Lindstead, 67 AD2d 755). Because the court modified the order establishing defendant’s child support obligation, however, it should have applied the Child Support Standards Act (Domestic Relations Law § 240 [1-b] [l]) to determine defendant’s new obligation.

Supreme Court erred in denying plaintiffs cross motion. Plaintiff is entitled to collect child support arrears from the date defendant unilaterally reduced his payment until the time he made an application to have the judgment amended (Domestic Relations Law § 240 [1]; § 244). And as plaintiff’s right to counsel fees is mandatory in this case because defendant willfully failed to obey an order of child support (see, Domestic Relations Law § 237 [c]), a hearing should be held for the purpose of determining a reasonable amount to be awarded to plaintiff for these fees (see, Simons v Simons, 139 AD2d 959, 961).

Order modified, on the law, without costs, by reversing so much thereof as reduced defendant’s child support to $125 and denied plaintiff’s cross motion for counsel fees and arrears; matter remitted to the Supreme Court for further proceedings not inconsistent with this court’s decision; and, as so modified affirmed. Weiss, Yesawich, Jr. and Harvey, JJ., concur.