Brescia v. Fitts

• Decision Date: 20 May 1982
• Citation: 436 N.E.2d 518,451 N.Y.S.2d 68,56 N.Y.2d 132
• Parties: , 436 N.E.2d 518 In the Matter of Anne S. BRESCIA, Appellant, v. Peter C. FITTS, Respondent.
• Court: New York Court of Appeals Court of Appeals

Page 68

451 N.Y.S.2d 68

56 N.Y.2d 132, 436 N.E.2d 518

In the Matter of Anne S. BRESCIA, Appellant, v. Peter C. FITTS, Respondent.

Court of Appeals of New York.

May 20, 1982.

Douglas R. Hoyt, New Rochelle, for appellant

John H. Galloway, III, Scarsdale, for respondent.

OPINION OF THE COURT

GABRIELLI, Judge.

In this proceeding instituted in Family Court, petitioner seeks child support payments from respondent in amounts exceeding those provided in the parties' separation agreement. Family Court granted the petition for upward modification, basing its award on the current needs of the children. The Appellate Division, 82 A.D.2d 803, 439 N.Y.S.2d 407, reversed and dismissed the petition, concluding that petitioner had not demonstrated that an increase in child support payments was warranted.

Petitioner and respondent were married in 1964. Two children were born of this marriage. Following marital difficulties, the parties entered into a separation agreement in 1975, which provided that custody would remain with the petitioner mother, and also provided for a declining sum of maintenance and support for petitioner and the children. In 1977, a judgment of divorce was granted based upon the parties having lived separate and apart pursuant to the separation agreement for a period of one year or more (Domestic Relations Law, § 170, subd. ). The judgment includes a direction that respondent pay certain amounts to petitioner for the support of herself and the children. The amounts specified in the judgment are the same as those agreed upon by the parties in their separation agreement. The judgment also provides that the separation agreement "shall survive and so not be merged" in the judgment, and that jurisdiction of the matter would be retained in Supreme Court, concurrently with Family Court, to enforce or modify the provisions of the judgment.

In 1978, petitioner remarried, and pursuant to the terms of the parties' agreement (and the judgment of divorce), respondent's support obligation was reduced to the sum of $3,000 a year for each child. Shortly thereafter, petitioner commenced the present proceeding in Family Court for an order modifying the judgment of divorce to increase the amount of child support payments. Petitioner alleged that a change in circumstances had occurred since entry of the divorce decree warranting an increase in child support, inasmuch as the children were older, their needs were greater, the amounts provided in the decree were inadequate and the financial means of respondent had increased. Petitioner sought modification of the decree in accordance with the children's needs.

A hearing was held by Family Court, at which petitioner offered evidence regarding her present financial status, the children's expenses and respondent's current financial situation (although respondent had conceded his ability to pay any amount by which support was deemed inadequate). Both parties introduced evidence concerning the circumstances surrounding the negotiation and execution of their separation agreement, on the issue of whether it was fair and equitable when made.

Family Court, insofar as is here relevant, ordered respondent to pay increased child support in an amount which brought his total obligation to $5,200 a year for each child. This upward modification of child support was based on Family Court's finding that the separation agreement, the basis for the existing level of child support, was not fair and equitable when entered into, as it did not provide for a fair allocation of continuing responsibility, nor did it reflect a sense of providing for the future needs of the children. The court then proceeded to redetermine support based upon the current needs of the children.

The Appellate Division reversed (82 A.D.2d 803, 439 N.Y.S.2d 407), finding that petitioner's generalized claim of the children's increased needs and her showing of a significant increase in respondent's income did not warrant an increase in child support (citing Matter of Boden v. Boden, 42 N.Y.2d 210, 397 N.Y.S.2d 701, 366 N.E.2d 791). That court also noted that while the evidence of overreaching by respondent in the execution of the separation agreement may have provided ground for equitable rescission of the agreement, Family Court may not order such rescission, as it lacks equity jurisdiction. There should be a reversal.

Recently, in Matter of Boden v. Boden (supra ), we considered the effect of a separation agreement on the parties' efforts to readjust their child support obligations. While the parties to a separation agreement are, in the usual case, bound by its provisions regarding the allocation of the financial responsibility of supporting the children, there are circumstances under which a court may properly modify that stipulated allocation. Having due regard for the assumption that the children's needs were adequately anticipated and provided for in the parties' agreement, in Boden we held that the court may nevertheless modify the parties' respective obligations where it is determined either that the agreement was not fair and equitable when entered into, or that an unanticipated and unreasonable change in circumstances has occurred, resulting in a concomitant need (id., at p. 213, 397 N.Y.S.2d 701, 366 N.E.2d 791).

We are cognizant of the broad reading given our decision in Boden by some lower courts (see, e.g., Jaslow v. Jaslow, 75 A.D.2d 876, 878, 427 N.Y.S.2d 292; La Scala v. La Scala, 73 A.D.2d 1068, 1069, 422 N.Y.S.2d 229; Matter of Sacco v. Sacco, 69 A.D.2d 1004, 1005, 416 N.Y.S.2d 445; Matter of Barylski v. Barylski, 100 Misc.2d 784, 786, 420 N.Y.S.2d 170; Jarvis v. Jarvis, 99 Misc.2d 79, 415 N.Y.S.2d 557, affd. sub nom. Jacobson v. Jacobson, 68 A.D.2d 809, 413 N.Y.S.2d 798; Matter of Boy v. Gum, 95 Misc.2d 435, 405 N.Y.S.2d 950, revd. on other grounds sub nom. Matter of Boyce v. Gumbiner, 68 A.D.2d 862, 414 N.Y.S.2d 698). Contrary to that broad view, however, the principles enunciated in Boden are not applicable in every case in which increased child support is sought in the face of a separation agreement. An examination of the facts in Boden makes obvious the circumstances to which that case applies. There, the separation agreement between the parents obligated the father to pay a monthly amount for the child's support and to pay for the child's college education in an amount and manner set forth in the agreement. When the child reached college age and decided to attend Yale University, the mother sought child support from the father in an amount exceeding that provided in their separation agreement. At the time of the proceeding, the mother was earning an annual salary of $45,000, while the father's income was approximately $43,000 per year. In seeking increased child support from the father, the mother was...