A New York Family Lawyer said this is a matrimonial action wherein the parties were divorced by judgment entered 24 October 2008. The defendant appeals, as limited by his brief, from an order of the Supreme Court, Nassau County dated 30 July 2009, as denied, without a hearing, those branches of his motion which were for a downward modification of his child support and maintenance obligations and, in effect, denied that branch of his motion which was to confer continuing jurisdiction over this action upon the Family Court concurrent with that of the Supreme Court.
A New York Child Custody Lawyer said the court orders to modify, on the law, by deleting the provision denying, without a hearing, those branches of the defendant’s motion which were for a downward modification of his child support and maintenance obligations. As so modified, the order is affirmed insofar as appealed from, without costs or disbursements, and the matter is remitted to the Supreme Court, Nassau County, for a hearing on those branches of the defendant’s motion which were for a downward modification of his child support and maintenance obligations and a new determination thereafter on those branches of the motion.
Based on Matter of Gravlin v Ruppert, Merl v Merl and Nelson v Nelson, the terms of a stipulation of settlement that is incorporated but not merged into a judgment of divorce operate as contractual obligations binding on the parties. As was held in Merl v Merl, Matter of Boden v Boden and Nelson v Nelson, generally, child support provisions deriving from such an agreement may be modified upon a showing that the agreement was not fair and equitable when entered into, or upon a showing of an unanticipated and unreasonable change in circumstances. Modification of maintenance obligations deriving from such an agreement generally requires a showing of extreme hardship based on Domestic Relations Law § 263[B][b] and as held in a similar case of Rockwell v Rockwell.
The parties are free, however, to agree to different terms triggering a change in the obligations of the payor spouse, including the application of a standard other than substantial unanticipated and unreasonable change in circumstances as the basis for determining a modification application, provided that, in the case of child support, the children’s personal right to receive adequate support is not adversely affected and public policy is not offended based on Heller v Heller, Matter of Lomanto v Schneider, Matter of Vincent Z. v Dominique K., Glass v Glass, Colyer v Colyer, Putnick v Rockcastle and Matter of Studenroth v Phillips. In Heller v Heller, Matter of Dallin v Dallin and Walsh v Walsh, it was held that the parties may establish a threshold which the payor spouse must meet before seeking such a reduction.
A Queens Family Lawyer said in the case at bar, the parties’ stipulation provided that the parties acknowledge that the HUSBAND has Multiple Sclerosis. The parties further acknowledge that the support is being based upon the HUSBAND being physically capable of earning one hundred fifty thousand dollars ($150,000) per year. The Supreme Court, Nassau County retains exclusive jurisdiction for any modification or enforcement proceeding.
A Queens Family Lawyer said the party seeking to modify support provisions has the burden of establishing that modification is warranted as was held in Matter of Karagiannis v. Karagiannis. The court is required to conduct a hearing where the parties’ affidavits disclose the existence of genuine triable issues of fact also based on Rockwell v. Rockwell and Nordhauser v. Nordhauser.
In the case at bar, the defendant raised genuine triable issues of fact as to whether he is capable of earning $150,000 per year. Specifically, the defendant raised triable issues of fact by the submission of his affidavit, in which he averred that because of his physical condition, he is limited in the amount of time he can work, resulting in a decrease in income, and by his submission of recent medical reports documenting his physical limitations. Accordingly, a hearing was warranted on the issues of whether a downward modification of the defendant’s maintenance and child support obligations is appropriate.
The court finds, however, that the Supreme Court properly denied that branch of the defendant’s motion which has to confer continuing jurisdiction over this action upon the Family Court concurrent with that of the Supreme Court, so as to permit the Family Court to consider enforcement and modification proceedings. In the stipulation of settlement, the parties voluntarily and clearly agreed that the Supreme Court would retain exclusive jurisdiction. The express terms of the stipulation of settlement are binding on the parties in this regard based on Matter of Graylin v Ruppert, Merl v Merl and Nelson v Nelson.
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