Collyer v. Proper

• Citation: 486 N.Y.S.2d 808,109 A.D.2d 1010
• Parties: In the Matter of Kay C. COLLYER, Respondent-Appellant, v. Robert B. PROPER, Appellant-Respondent.
• Decision Date: 21 March 1985
• Court: New York Supreme Court Appellate Division

Page 808

486 N.Y.S.2d 808

109 A.D.2d 1010

In the Matter of Kay C. COLLYER, Respondent-Appellant, v. Robert B. PROPER, Appellant-Respondent.

Supreme Court, Appellate Division Third Department.

March 21, 1985.

Hiscock & Barclay, Buffalo (Kenneth J. Connolly, Albany, of counsel), for appellant-respondent.

Daniel Ross, Middleburg, for respondent-appellant.

Before MAHONEY, P.J., and MIKOLL, YESAWICH and LEVINE, JJ.

LEVINE, Justice.

Cross appeals from an order of the Family Court of Schoharie County, entered February 7, 1984, which, inter alia, denied petitioner's application for increased child support and denied respondent's cross petition to terminate alimony.

Petitioner and respondent were divorced in 1978. At that time, they entered into a stipulation which was incorporated in, but did not merge with, the decree of divorce. It provided that respondent would pay petitioner $16,000 per year in alimony and $2,000 per year in support for each minor child living with petitioner. The alimony payments would terminate upon petitioner's remarriage or if she entered into a relationship parallel to a marriage "within the meaning of the Domestic Relations Law".

In August 1982, the parties' youngest child, Tricia, then age 13, moved from her father's residence in New York to Florida to reside with petitioner. Petitioner then commenced the instant proceeding for increased child support. Respondent cross-moved, inter alia, for the termination of alimony payments to petitioner. Family Court denied both claims and these cross appeals ensued.

Family Court did not abuse its discretion in denying petitioner's claim for increased support payments. Such an increase is warranted, in the exercise of the court's discretion, only in cases where a petitioner can show a change in circumstances which justifies the modification in the best interest of the child (Matter of Michaels v. Michaels, 56 N.Y.2d 924, 926, 453 N.Y.S.2d 605, 439 N.E.2d 321). Factors to be considered by Family Court in making its decision include increased need due to special circumstances or additional activities of the child, cost-of-living increases, and a change in a parent's financial situation (Matter of Brescia v. Fitts, 56 N.Y.2d 132, 141, 451 N.Y.S.2d 68, 436 N.E.2d 518). In the instant proceeding, however, petitioner failed to show any change in Tricia's or her parents' circumstances sufficient to warrant an increase in the amount of child support. Although petitioner alleged that $2,000 per year was insufficient for Tricia's medical and educational needs, testimony at trial indicated that Tricia's medical expenses were paid by respondent. Trial testimony further disclosed that Tricia attended public school in Florida and that her only special needs were for athletic equipment relating to her participation on the school basketball team. However, there was no showing that Tricia's needs were not being adequately met by the current support payments. Accordingly, Family Court could reasonably find that no change of circumstances had occurred to warrant an increase in support payments.

Family Court also properly denied respondent's claim for a termination of alimony payments. Respondent based this demand on the language of the stipulation which provided that alimony payments would end upon petitioner's remarriage or her engaging in a relationship "parallel to a marriage" as defined by the Domestic Relations Law. Respondent argued that petitioner had been living with a man for three years and that this relationship was sufficiently similar to a marriage to disqualify her from receiving further alimony. A review of the language of the stipulation reveals that this contention lacks merit. It states that alimony was to end if petitioner lived in circumstances parallel to a marriage "within the meaning of the Domestic Relations Law". The only relevant section of that...