Barylski v. Barylski

• Decision Date: 06 September 1979
• Parties: In the Matter of Joyce A. BARYLSKI, Petitioner, v. Michael K. BARYLSKI, Respondent.
• Court: New York Family Court

Page 170

420 N.Y.S.2d 170

100 Misc.2d 784

In the Matter of Joyce A. BARYLSKI, Petitioner, v. Michael K. BARYLSKI, Respondent.

Family Court, Rensselaer County.

Sept. 6, 1979.

Edward V. Loughlin, Jr., East Greenbush, for petitioner, Joyce A. barylski.

Terence E. Shanley, Troy, for respondent, Michael K. Barylski.

DECISION

ALLAN J. DIXON, Judge:

This matter comes before the court on a petition for modification of support order filed by the petitioner in this proceeding, Joyce A. Barylski. The respondent is Michael K. Barylski, the former husband of the petitioner. The current order of support entered by this court on June 8, 1978, provides, in essence, that the respondent shall pay the sum of $30.00 per week for the care, support and maintenance of Shane Michael Barylski, the child of the parties. That order further provides that the respondent shall pay the additional sum of $5.00 per week on accumulated arrears until such arrears are paid in full. The basic order of $30.00 per week was entered in accordance with the amount specified in the separation agreement executed by the parties on January 2, 1975, which said agreement was incorporated in the decree of divorce between the parties dated July 28, 1976.

In relevant part, Ms. Barylski's petition to modify, dated June 3, 1979, alleged that a change of circumstances had occurred since the entry of the above order in that the respondent had completed his college education and was now employed on a full-time basis. The petition further alluded to paragraph "5" of the separation agreement wherein it states concerning the $30.00 per week provision with respect to child support as follows: "This provision for support shall be reopened after January 1, 1976, for the purpose of increasing the support in the event the husband's income warrants such an increase". This is particularly noteworthy in view of the positions taken by counsel for the respective parties. Counsel for the petitioner contended that in view of the above-stated provision contained in the separation agreement, the petitioner need only show that the respondent's income had in fact increased since the date of the agreement in order to justify an increase in the support order. Counsel for the respondent however, took the position that the petitioner must demonstrate that both the needs of the child and the income of the respondent have increased in order to justify an upward modification of the support order. The resolution of this issue becomes especially important in view of the fact that the respondent was the sole witness to testify at the fact-finding hearing.

It would appear that the current trend of authority is to the effect that in order to justify an upward revision of a child support order both an increase in the needs of the child and an increase in the income of the respondent must be shown. In other words, proof of an increase in the father's income, standing alone, does not constitute a change of circumstances sufficient to justify an upward modification. Fensterheim v. Fensterheim, 55 A.D.2d 516, 389 N.Y.S.2d 13, (First Department, 1976); Matwijow v. Hay, 63 A.D.2d 859, 406 N.Y.S.2d 208, (Fourth Department, 1978). As previously stated, this would appear to be the current trend but there are cases to the contrary (cf. Handel v. Handel, 32 A.D.2d 946, 304 N.Y.S.2d 76, aff'd on procedural ground, 26 N.Y.2d 853, 309 N.Y.S.2d 599, 258 N.E.2d 94; Commissioner of Welfare ex rel. Verdelle v. Belgrave, 16 A.D.2d 771, 227 N.Y.S.2d 984).

Since the petition to modify, dated June 13, 1979, did not allege that the needs of the child had increased, nor was any proof of increased needs of the child adduced at the trial, it would appear that if the aforementioned recent cases were held to be controlling, the petition might be subject to dismissal. However, this would not appear to be the case.

At first glance, it may appear that the petitioner is seeking to modify the child support provision in the separation agreement, i. e., seeking to go beyond the bounds of the separation agreement to obtain an increase in the child support order. If this is, in fact, the case, the petitioner has an additional burden other than that already discussed. This is the burden imposed by the Court of Appeals decision, Matter of Boden v. Boden, 42 N.Y.2d 210, 397 N.Y.S.2d 701, 366 N.E.2d 791. That decision made it clear that although the Family Court does have the authority to modify the child support provisions of a separation agreement, absent a showing of an unanticipated, unreasonable, and unforeseeable change in circumstances, the child support provisions of the separation agreement should not be disturbed at least where the agreement was fair and equitable when entered into.

However, it is clear to the court that the petitioner is not seeking to modify the child support provision of the separation agreement as such, but rather the request is to increase the amount of child support in accordance with the letter of the agreement as contained in paragraph "5" thereof. This point was explicitly made...