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Ex-Wife Seeks to Increase Child Support

In a matrimonial action in which the parties were divorced by a judgment, the defendant former husband appeals (1) as limited by his brief, from so much of an order of the Supreme Court, Suffolk County, as, after a hearing, and upon a prior order of the same court, entered, which interpreted a child support escalation provision in a stipulation of settlement incorporated but not merged in the judgment of divorce, awarded the plaintiff a money judgment in the amount of $24,512, representing arrears in child support due and owing the plaintiff for the years 1984 through 1989, (2) from an order of the same court, which granted the plaintiff former wife’s motion for counsel fees in the amount of $9,450, and (3) purportedly from so much of the order of the same court, as denied his motion for counsel fees.

A Queens Family Lawyer said that the order of the Supreme Court, Suffolk County, denied the defendant’s motion for counsel fees. Since the defendant withdrew his notice of appeal from that order, his purported appeal from so much of that order as denied his motion for counsel fees must be dismissed.
In that very same order, the Supreme Court, in delineating the issues to be determined at a hearing to be held on the defendant’s motions, interpreted the child support escalation provision in a stipulation of settlement which was incorporated but not merged in the judgment of divorce in a manner adverse to that advanced by the defendant. However, that provision of the order, was not appealable as of right, since the hearing had not been held. Child support arrears allegedly due to the plaintiff based on the child support escalation provision were not determined until an order was entered, after a hearing, granting the plaintiff a money judgment for them. Since the defendant timely appealed from the order, his argument on appeal, to wit, that the Supreme Court erroneously interpreted the child support escalation provision, is properly before this court.

Pursuant to the stipulation of settlement, the parties’ agreed that the defendant would pay the plaintiff $140 per month in child support for each of their two children. The stipulation also contained the following escalation provision with respect to the defendant’s child support obligations:
The provisions for child support are based upon the defendant’s representation and the plaintiff’s belief and reliance therein that his total net earnings from all sources including commissions, overtime, et cetera, consists of $900.00 per month. It is further stipulated and agreed that in the event of an increase in the defendant’s earnings the defendant shall pay to the plaintiff as additional child support 20% of any net increase in earnings up to a net of $50,000.00 per annum”.

The plaintiff moved in Supreme Court, by order to show cause, to enforce the defendant’s child support obligation, as incorporated into the divorce judgment, seeking arrears pursuant to the escalation provision’s formula. The plaintiff contended that the term “earnings”, as defined therein, precluded the defendant, who was both a salaried employee and an independent insurance agent, from deducting, for the purposes of calculating possible arrears due thereunder, allowable business expenses from his “earnings”, since the stipulation did not expressly provide for such a deduction. A Nassau County Custody Lawyer said the Supreme Court adopted the plaintiff’s interpretation of the child support escalation provision and, after a hearing, granted the plaintiff an award of arrears for the years 1984 through 1989, based on calculations, pursuant to the escalation formula, that did not account for the defendant’s allowable business deductions.

The Court disagree with the Supreme Court’s interpretation of the child support escalation provision.
It is well settled that a stipulation of settlement entered into by spouses in contemplation of divorce is a contract subject to principles of contract interpretation. A court may not write into a contract conditions the parties did not insert by adding or excising terms under the guise of construction, nor may it construe the language in such a way as would distort the contract’s apparent meaning. The words and phrases used in an agreement must be given their plain meaning so as to define the rights of the parties. In this regard, the term “earnings”, as defined by the parties, has generally been construed, in the context of alimony and child support, to mean nothing more than “net income”, or gross income less allowable business expenses. Since the Supreme Court failed to deduct the defendant’s allowable business expenses in its calculations, the matter is remitted to the Supreme Court for a new determination with respect to the amount of arrears, if any, due the plaintiff from 1984, pursuant to the child support escalation provision, in accordance with the definition of “earnings” as set forth herein.

In addition, on remittitur, leave is granted to the plaintiff to amend her papers in support of her application, pursuant to Domestic Relations Law § 244-a, to include any appropriate arrears under the child support escalation provision which have accrued from the commencement of the proceeding. In this regard, the Court notes that the children of the marriage reached the age of 21 years. Finally, in light of our determination concerning the proper interpretation of the child support escalation provision, we deem it appropriate to reverse the award of counsel fees which was granted to the plaintiff and remit to the Supreme Court for a new determination of this issue.

The Court have considered the parties’ remaining contentions and find them to be either academic or without merit.

Delicate cases such as family matters should be entrusted to quality lawyers such as our Suffolk County Family lawyers here in Stephen Bilkis and Associates. For a quality and credible advice, don’t hesitate to write or call us. Our Suffolk County Guardianship attorneys are also here, if you seek to be a guardian of someone.

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