Ballard v. Davis

• Citation: 229 A.D.2d 705,645 N.Y.S.2d 148
• Court: New York Supreme Court — Appellate Division
• Decision Date: 11 July 1996
• Parties: In the Matter of Marilyn BALLARD, Appellant, v. William DAVIS, Respondent.

Page 148

645 N.Y.S.2d 148

229 A.D.2d 705

In the Matter of Marilyn BALLARD, Appellant, v. William DAVIS, Respondent.

Supreme Court, Appellate Division,

Third Department.

July 11, 1996.

Govern, McDowell & Becker (Carl F. Becker, of counsel), Stamford, for appellant.

Richard B. Spinney, Stamford, for respondent.

Before CARDONA, P.J., and MERCURE, WHITE, CASEY and PETERS, JJ.

CARDONA, Presiding Justice.

Appeal from an order of the Family Court of Delaware County (Estes, J.), entered June 9, 1995, which partially granted petitioner's application, in a proceeding pursuant to Family Court Act article 4, seeking an upward modification of respondent's child support obligation.

The parties were married in 1978 and have two minor children, Nicolette Davis and Brooke Davis, born in 1980 and 1983, respectively. Petitioner and respondent executed a separation agreement in 1986 which required respondent to pay child support in the amount of $50 per week in biweekly payments. The separation agreement was incorporated, but not merged, into a subsequent divorce judgment.

In January 1995, petitioner commenced this proceeding pursuant to Family Court Act article 4 seeking an upward modification of respondent's support obligation. At the hearing, petitioner testified generally to the increased needs of the parties' growing children. Respondent testified that he had voluntarily increased his biweekly support payment to $128.50 and that he saved $60 per month for the children in custodial accounts. Further, it was established that respondent's gross income increased since the execution of the separation agreement from approximately $24,000 to $51,947.62 in 1994 and petitioner's gross income also increased from approximately $26,000 to $42,628.50. In addition, both parties had remarried to working spouses. The Hearing Examiner partially granted petitioner's application for an upward modification by raising the weekly support obligation to $125. Petitioner filed objections claiming that the Hearing Examiner erred in failing to apply the Child Support Standards Act (hereinafter CSSA) percentage for two children (see, Family Ct. Act § 413[1][b][3][ii] ), which, she asserted, would have resulted in a weekly child support obligation of $211.25. She also contended that the Hearing Examiner should have applied the CSSA formula to the parties' combined income over $80,000. Family Court denied petitioner's objections and this appeal followed.

As a preliminary matter, we note that respondent's failure to file "specific written objections to the Hearing Examiner's final order of support, as outlined in Family Court Act § 439(e)" waives appellate review (Matter of Menaldino [Aletha TT.] v. Mark UU., 141 A.D.2d 265, 267, 535 N.Y.S.2d 456; see, Matter of Davidson v. Wilner, 214 A.D.2d 563, 625 N.Y.S.2d 917; Matter of Werner v. Werner, 130 A.D.2d 754, 516 N.Y.S.2d 49) of the issue of whether petitioner adduced sufficient evidence at the hearing to warrant an upward modification of respondent's child support obligation contained in the parties' surviving separation agreement (see, Merl v. Merl, 67 N.Y.2d 359, 362, 502 N.Y.S.2d 712, 493 N.E.2d 936; Matter of Brescia v. Fitts, 56 N.Y.2d 132, 138-140, 451 N.Y.S.2d 68, 436 N.E.2d 518; Matter of Boden v. Boden, 42 N.Y.2d 210, 397 N.Y.S.2d 701, 366 N.E.2d 791; Matter of Strack v. Strack, 225 A.D.2d 872, 638 N.Y.S.2d 526; Matter of Demont v. Demont, 200 A.D.2d 920, 607 N.Y.S.2d 437). Accordingly, our review is limited to whether the Hearing Examiner abused his discretion by choosing to deviate from the application of the CSSA percentage formula in fixing...