Brady v. White

• Decision Date: 21 February 2018
• Docket Number: F–11681–06/13K,Docket Nos. F–11681–06/12I,F–11681–06/12J,2016–05195
• Parties: In the Matter of Denise Ann BRADY, respondent, v. Raymond A. WHITE, appellant. (Proceeding Nos. 1 and 2) In the Matter of Raymond A. White, appellant, v. Denise Ann Brady, respondent. (Proceeding No. 3)
• Court: New York Supreme Court — Appellate Division

158 A.D.3d 748
72 N.Y.S.3d 114

In the Matter of Denise Ann BRADY, respondent,
v.
Raymond A. WHITE, appellant. (Proceeding Nos. 1 and 2)

In the Matter of Raymond A. White, appellant,
v.
Denise Ann Brady, respondent. (Proceeding No. 3)

2016–05195
Docket Nos. F–11681–06/12I
F–11681–06/12J
F–11681–06/13K

Supreme Court, Appellate Division, Second Department, New York.

Submitted—January 25, 2018
February 21, 2018

N. Scott Banks, Hempstead, N.Y. (Tammy Feman and Argun M. Ulgen of counsel), for appellant.

Brian M. Collins, Melville, NY, for respondent.

ALAN D. SCHEINKMAN, P.J., JOHN M. LEVENTHAL, BETSY BARROS, VALERIE BRATHWAITE NELSON, JJ.

DECISION & ORDER

158 A.D.3d 748

Appeal from an order of the Family Court, Nassau County (Edmund M. Dane, J.), dated March 23, 2016. The order, insofar as appealed from, denied the father's objections to (1) an order of that court (Patricia Bannon, S.M.) dated January 12, 2016, which, after a hearing, determined that the father was in willful violation of a prior order directing payment of child support and maintenance and that he owed $57,746.63 in child support and maintenance arrears, (2) an order of that court (Patricia Bannon, S.M.), also dated January 12, 2016, which, after a hearing, dismissed the father's petition for a downward modification of his child support and maintenance obligations, and (3) an order of that court (Patricia Bannon, S.M.), also dated January 12, 2016, directing the entry of a money judgment in favor of the mother and against the father in the principal sum of $57,746.63 for child support and maintenance arrears.

158 A.D.3d 749

ORDERED that the order dated March 23, 2016, is modified, on the law and the facts, (1) by deleting the provision thereof denying the father's objections to so much of the first order dated January 12, 2016, as determined that he owed $57,746.63 in child support and maintenance arrears and the third order dated January 12, 2016, and substituting therefor a provision granting those objections and vacating that portion of the first order dated January 12, 2016, and the third order dated January 12, 2016, and (2) by deleting the provision thereof denying the father's objections to so much of the second order dated January 12, 2016, as dismissed those branches of his petition which were for a downward modification of his child support and maintenance obligations in accordance with the parties' stipulation of settlement, and substituting therefor a provision granting those objections to the extent of determining that his child support obligation is $331 per week as of August 14, 2012, and his maintenance obligation is $265 per week as of July 23, 2013, and $250 per week as of January 1, 2014, and vacating so much of the second order dated January 12, 2016, as dismissed those branches of the father's petition which were for a downward modification of his child support and maintenance obligations in accordance with the parties' stipulation of settlement; as so modified, the order dated March 23, 2016, is affirmed insofar as appealed from, without costs or disbursements, and the matter is remitted to the Family Court, Nassau County, for a new determination of the amount of child support and maintenance arrears owed by the father in accordance herewith.

The parties were married in 1998 and divorced in September 2005. Pursuant to their stipulation of settlement, which was incorporated but not merged into the judgment of divorce, the father agreed to pay $400 per week in child support for the parties' five children. The stipulation of settlement further provided that the father's child support obligation would be reduced to $354 per week upon the emancipation of the oldest child, and would be further reduced to amounts set forth therein upon the emancipation of each of the second, third, and fourth oldest children. Additionally, the father agreed to pay $300 per week in maintenance. Such payments were to continue until November 1, 2011, at which time his maintenance payment would be reduced to $265 per week, and would be further reduced to specified amounts pursuant to a schedule set forth therein until ceasing in 2022.

In 2009, the father petitioned to modify his child support obligation in accordance with the stipulation of settlement on

158 A.D.3d 750

the ground that the oldest child was emancipated. In July 2009, the Family Court, upon consent, issued a modification order (hereinafter the 2009 modification order) directing the father to pay $354 per week in child support for the remaining four children and $300 per week in maintenance.

In August 2012, the father petitioned, inter alia, for a downward modification of his child support obligation in accordance with the stipulation of settlement on the ground that the parties' second oldest child was emancipated. He withdrew that petition and filed a second petition seeking that same relief, as well as a downward modification of his child support obligation based upon a change in circumstances and a downward modification of his maintenance obligation based upon "extreme hardship." The Support Magistrate permitted the father to preserve the original filing date for issues that were raised in the first petition. Shortly thereafter, the father made an application for a downward modification of his maintenance obligation in accordance with the maintenance reduction provision in the stipulation of settlement. In December 2012, the mother filed a petition to enforce provisions of the 2009 modification order and a petition alleging that the father was in willful violation of the 2009 modification order.

Following a hearing on the parties' petitions, in an order dated January 12, 2016, the Support Magistrate determined that the father was in willful violation of the 2009 modification order directing payment of child support and maintenance, and that he currently owed $57,746.63 in child support and maintenance arrears. In a second order dated January 12, 2016, the Support Magistrate dismissed the father's petition for a downward modification of his child support and maintenance obligations. In a third order dated January 12, 2016, the Support Magistrate directed the entry of a money judgment in favor of the mother and against the father in the principal sum of $57,746.63 for current child support and maintenance arrears. The father filed objections to the Support Magistrate's orders, and the Family Court denied the objections in...