Boden v. Boden

• Decision Date: 07 July 1977
• Citation: 397 N.Y.S.2d 701,42 N.Y.2d 210,366 N.E.2d 791
• Parties: , 366 N.E.2d 791 In the Matter of Janet BODEN, Mother, on Behalf of Janet M. Boden, Respondent, v. James J. BODEN, Appellant.
• Court: New York Court of Appeals Court of Appeals

Page 701

397 N.Y.S.2d 701

42 N.Y.2d 210, 366 N.E.2d 791

In the Matter of Janet BODEN, Mother, on Behalf of Janet M.

Boden, Respondent, v. James J. BODEN, Appellant.

Court of Appeals of New York.

July 7, 1977.

James H. Goodfriend, New York City, for appellant.

Peter E. Bronstein, New York City, for respondent.

WACHTLER, Judge.

A mother, on behalf of her daughter, brings this proceeding to seek child support in excess of the amount provided in the separation agreement between the mother and father. The Family Court denied the petition. A divided Appellate Division reversed that determination and awarded $250 per month as child support. This represented an increase of $100 a month over and above the amount being paid by the father under the terms of the separation agreement. The father has appealed from that determination.

Janet and James Boden were married in 1956 and their only child, a daughter, was born in 1957. Marital difficulties resulted in the parties executing a separation agreement in May of 1960. Pursuant to the terms of that agreement, the father was to pay child support in the amount of $150 per month. In addition, the agreement obligated the father to: "(P)ay for the college education of said child and to that end shall cause a life insurance endowment policy in the principal sum of $7,500 to be written on his life, to mature 15 years from date hereof, and to pay all premiums thereon. The proceeds of such policy shall be used for the purpose of such college education * * * Such policy shall provide that the proceeds are to be applied for such college education with the further proviso that if said child shall die, or shall attain the age of 21 years without having attended college, then the proceeds of such policy shall be paid to the Husband."

After the separation the mother and daughter moved to California, where a final judgment of divorce was granted on January 26, 1961. The divorce decree awarded custody of the child to the mother but contained no provision for child support nor was the New York separation agreement expressly incorporated or merged in that decree.

When the child reached college age, she decided with her mother's counseling, to attend Yale University in New Haven, Connecticut. At about this time, the mother, who has not remarried, moved back to New York and subsequently initiated this proceeding, on behalf of her daughter, seeking to have the amount of child support being paid by the father increased.

It is undisputed that at all times prior to the initiation of this litigation the father had complied with the support provisions of the agreement. In addition, he had purchased and kept in force the insurance endowment policy called for by the agreement and the daughter, having commenced her college education, began to receive payments from that fund.

In this proceeding the mother sought to have the child support increased to $15,170.99 per annum. The father was then paying $1,800 a year in support and an additional $1,875 from the insurance endowment policy an aggregate of $3,675 per year. At the hearing in Family Court, it was established that the mother was presently earning an annual salary of $45,000 as an executive in an advertising agency. On the other hand, the father, who had remarried, had an income of approximately $43,000 per year.

A husband and wife, in entering into a separation agreement, may include in that agreement provisions pertaining to the support of the children of their marriage. The terms, like any other contract clauses, are binding on the parties to the agreement. The child, on the other hand, is not bound by the terms of the agreement (see Family Ct. Act, § 461, subd. (a); Moat v. Moat, 27 A.D.2d 895, 277 N.Y.S.2d 921) and an action may be commenced against the father for child support despite the existence of the agreement (see Family Ct. Act, § 413; Backstatter v. Backstatter, 66 Misc.2d 331, 320 N.Y.S.2d 613). In deciding the amount of child support to be awarded, the Family Court is not constrained by the terms of the separation agreement, but rather must look to the facts and circumstances of each case individually and determine the amount of support necessary. The key consideration, of course, is the best interest of the child, insuring that the child be adequately provided for but the court must also consider the assets, earnings, expenses and...