Colyer v. Colyer

• Decision Date: 24 July 2003
• Citation: 309 A.D.2d 9,763 N.Y.S.2d 249
• Parties: JULIE COLYER, Appellant,<BR>v.<BR>JOHN COLYER, Respondent.
• Court: New York Supreme Court — Appellate Division

309 A.D.2d 9

763 N.Y.S.2d 249

JULIE COLYER, Appellant,

v.JOHN COLYER, Respondent.

SULLIVAN, J.

July 24, 2003.

Larry M. Carlin of counsel (Carlin & Rothstein, attorneys), for appellant.

Benjamin J. Golub of counsel (Rogovin Golub Bernstein & Wexler, LLP, attorneys), for defendant.

NARDELLI, J.P., ANDRIAS and ROSENBERGER, JJ., concur.

OPINION OF THE COURT

SULLIVAN, J.

Among the issues presented on this appeal from three orders arising out of litigation over the parties' separation agreement is whether the agreement provided the husband with broader grounds to modify his child support obligation than are otherwise available to warrant such relief.

The parties, married on August 5, 1989, entered into a January 17, 1994 separation agreement, which was incorporated but not merged into a May 3, 1994 judgment of divorce. There is one child of the marriage, Victoria. As relevant to the appeal, the agreement granted the wife sole and exclusive custody of the child and required the husband under article III, paragraph 2 (A) (i), to pay monthly child support of $1,300 directly to the wife commencing January 1, 1994, as well as to pay for the child's health insurance and college education.

Under article III, paragraph 2 (B), the parties acknowledged the existence of two accounts having a balance of approximately $40,000, which had been established as the "[c]ustodial [a]ccount" for the child's benefit with the wife as the sole custodian. The agreement provided that commencing January 1, 1994, she could withdraw $500 monthly from the custodial account for the support of the child. In the event of an insufficiency of funds to enable the wife to withdraw $500 per month from the custodial account, the husband was required to pay the wife directly the sum of $500 in addition to the requisite $1,300 for the child's support. Thus, the agreement set the husband's support obligation at $1,800 per month, payable $1,300 in direct support and $500 from the custodial account. Once the account was exhausted, the husband was obligated to make the $500 payment directly to the wife.

With an approximate $40,000 in the custodial account, the separation agreement provided for 80 monthly withdrawals of $500 each, at the end of which two events were contemplated: the husband's receipt of the next installment, approximately $180,000, from his inheritance; and the husband's right to make any application he deemed appropriate with respect to his child support obligation. As to the latter, the separation agreement, insofar as is relevant, provided:

"[T]he Husband agrees that he will not make any application for a period of eighty (80) months from the date of this Agreement to modify his [child] support obligation pursuant to this Article III. Thereafter, * * * the Husband shall be permitted to make any application he deems appropriate with respect to his child support obligation." (Art III ¶ 3 [A].)

Paragraph 5 of article III of the separation agreement contained an acknowledgment that the parties had been advised of the provisions of Domestic Relations Law § 240 (1-b) and Family Court Act § 413, the application of which could affect the amount of child support the husband would be required to pay, and that they reviewed the provisions and understood them. The husband and wife also acknowledged that their incomes were $15,000 and $32,321, respectively. The paragraph also acknowledged that if the Child Support Standards Act (CSSA) were to apply and without any consideration of the wife's income the husband's monthly support obligation for the child would be approximately $100. Paragraph 5 further provided "[t]he reason [sic] the parties have agreed to deviate from the amount of support that would be required under the CSSA are as follows: (a) [t]he terms of the parties' pre-nuptial agreement concerning child support[;] (b) [t]he waiver of maintenance by the [w]ife [;and] (c) [t]he financial circumstances of each of the parties."

Pursuant to article XII, in which the parties provided for equitable distribution of their marital assets, the husband agreed to pay the wife $47,800 simultaneously with the execution of the agreement. The husband agreed to pay the wife $25,000 by November 22, 2000 and that upon his failure to pay that amount from a trust distribution due on November 20, 2000, pursuant to article XII, paragraph 2 (B) (ii), the trustees were to pay that amount directly to the wife from the trust. Finally, the agreement provided that in the event of default, the nondefaulting party was required to give written notice thereof by certified mail. The agreement provided that "the defaulting party agrees to indemnify the other party against and to reimburse that party for any and all expenses, costs and attorney's fees resulting from or made necessary by the bringing of any suit or other proceeding to enforce any of the terms, covenants or conditions of this [a]greement." (Art XIV ¶ 1.)

On November 10, 2000, the wife's attorney wrote to the husband's attorney and the trustee requesting confirmation that the trustee would comply with his obligation pursuant to article XII, paragraph 2 (B) (ii) with respect to the $25,000 payment from the trust. The parties ultimately agreed that the $25,000 would be retained in trust pending receipt of an order from the court. The wife, thereafter, on January 30, 2001, sought an order, inter alia, compelling the trustee to turn over to her out of the trust $25,000 plus 9% interest from November 22, 2000. The husband cross-moved, inter alia, pursuant to Domestic Relations Law § 236 (B) (9) (b), for a reduction of his child support obligation to $200 monthly.^[1]

While these motions were sub judice, on March 17, 2001, the child, now age 13, moved into her father's residence in Canada. In a supplemental affidavit, the husband further informed the court that the parties had agreed that Victoria would live with him, his current wife and infant daughter because the wife "was, essentially, no longer in a position to control our daughter."^[2] Due to these changed circumstances in the custody arrangement, the motion court held in abeyance the husband's application for a downward modification of his child support obligation.

In the first order on appeal, dated May 25, 2001, the court directed that the husband "pay or caused [sic] to be paid $25,000.00 to [the wife] within thirty days of this order or shall cause the Trust of which he is a beneficiary to provide legal proof of why said money cannot be released from the[t]rust at this time." The court further directed that on the failure of the husband or trust, as the case may be, to comply with the provisions of the order, the wife could settle an order for a $25,000 judgment with statutory interest retroactive to November 22, 2000. On June 25, 2001, the husband's attorney sent the wife's attorney a check in the sum of $25,000, advising that the wife "is not entitled to any additional interest, costs, disbursements or counsel fees."

In the second order on appeal, dated October 31, 2001, the court granted the husband's cross motion for a downward modification of his direct child support obligation, reducing it from $1,300 to $354 per month. In so ruling, the court rejected the wife's reliance on Domestic Relations Law § 236 (B) (9) (b), which, for a downward modification, the court noted, requires a showing of "financial hardship or a change in circumstances." The court held that the separation agreement, the validity of which neither party challenged, clearly granted the husband the right to seek modification of his child support obligation on broader grounds than might be allowed under the Domestic Relations Law. It justified this conclusion "in light of the parties' original decision to deviate from the CSSA guidelines to the benefit of [the wife]" and that, given the husband's income, the guidelines would have provided for a much lower direct child support obligation on his part. It found the separation agreement's provision allowing the husband to seek a modification of his support obligation to be proper since, citing Matter of DeAngelo v Doherty (208 AD2d 1012, 1014 [1994]), the child's right to receive adequate support is not adversely affected. Finally, it noted that the decision to allow modification was still a matter for the court and subject to consideration of the child's needs.

Without setting forth the standard to be applied in determining whether a modification was warranted and conceding the incompleteness of the financial information provided by each side, the court, nevertheless, granted modification and applied the CSSA guidelines. It noted that the husband's gross income was $39,600 (assumed to be $25,000 U.S.) and while he was the beneficiary of a trust, its corpus was concededly less than $200,000 and that the husband claimed that he received income of only $100 monthly. The court also noted the husband's claim that his expenses exceeded his income and that he had to borrow from his current wife and his family. The court, however, acknowledged that the husband failed to provide any "loan documents" and to indicate whether his current wife earns income and whether his new family depends on his income to meet expenses. The court observed that the wife had not provided her gross income, although she claimed after-tax income of $51,395 from her business. She listed $1,467 in interest or dividend income. The court noted that the wife's expenses had probably changed, most notably the child's education costs, in light of her move to the suburbs.

The court decided that, "[i]n part to compensate for the [wife's] failure to provide gross income figures," it would not take into account the husband's trust in determining his child support obligation. It found the husband's income for CSSA purposes to be $25,000 and the wife's to be $52,700 and, applying the guidelines, fixed the husband's support obligation at $354 per month. It found that no deviation was...