Gordon-Medley v. Medley

• Decision Date: 12 April 2018
• Docket Number: 524169
• Parties: Annejinette GORDON–MEDLEY, Respondent, v. David E. MEDLEY, Appellant.
• Court: New York Supreme Court — Appellate Division

160 A.D.3d 1146
74 N.Y.S.3d 412

Annejinette GORDON–MEDLEY, Respondent,
v.
David E. MEDLEY, Appellant.

524169

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

Calendar Date: February 16, 2018
Decided and Entered: April 12, 2018

Cordell & Cordell, PC, Albany (Asa S. Neff of counsel), for appellant.

Mitchell S. Kessler, Cohoes, for respondent.

Before: McCarthy, J.P., Egan Jr., Devine and Rumsey, JJ.

MEMORANDUM AND ORDER

McCarthy, J.P.

74 N.Y.S.3d 414

Appeal from a judgment of the Supreme Court (R. Sise, J.), entered May 6, 2016 in Schenectady County, ordering, among other things, equitable distribution of the parties' marital property, upon decisions of the court.

Plaintiff (hereinafter the wife) and defendant (hereinafter the husband) were married in 1995. The wife commenced this divorce action in 2011. At the time of trial, the parties had one child under the age of 21 (born in 1996), who was the subject of a 2003 Family Court order of child support. The parties stipulated to grounds for divorce and resolved a number of issues. A bench trial ensued on the issues of child support, maintenance and equitable distribution of the husband's pension. In two posttrial decisions, Supreme Court increased the husband's child support obligation and awarded the wife maintenance, counsel fees and one half of the marital portion of the husband's pension. These awards were reflected in a judgment of divorce, and the husband now appeals.

Supreme Court did not err in modifying the 2003 child support order based on the passage of time. The court relied on a 2010 amendment to Domestic Relations Law § 236, pursuant to which "[a] court may modify an order of child support where ... three years have passed since the order was entered, last modified or adjusted" ( Domestic Relations Law § 236[B][9][b][2][ii][A] ; see L 2010, ch 182, § 7). The Legislature provided an exception to the application of that amendment whereby, "if the child support order incorporated without merging a valid agreement or stipulation of the parties, the [relevant] amendments regarding the modification of a child support order ... shall only apply if the incorporated agreement or stipulation was executed on or after this act's effective date" (L 2010, ch 182, § 13). In accordance with this language, courts have refused to apply the amendment to proceedings seeking to modify a prior child support order that was incorporated into a divorce judgment or separation agreement (see Kaplan v. Kaplan, 130 A.D.3d 576, 578, 13 N.Y.S.3d 184 [2015] ; Matter of Zibell v. Zibell, 112 A.D.3d 1101, 1102, 976 N.Y.S.2d 625 [2013] ). Here, because the prior child support order was not incorporated into a later agreement, the statutory amendment was applicable. As the wife was entitled under the amendment to a modification of the child support order due to the passage of more than three years, without any requirement that she demonstrate a change in circumstances (see Domestic Relations Law § 236[B][9][b][2][ii][A] ; Matter of Thomas v. Fosmire, 138 A.D.3d 1007, 1007, 30 N.Y.S.3d 268 [2016] ), and the husband does not challenge Supreme Court's calculation of the amount of child support, we will not disturb the child support aspect of the judgment.

Supreme Court did not abuse its discretion in awarding the wife maintenance. "The amount and duration of a maintenance award is left to the sound discretion of the trial court," so long as the court "has considered the statutory factors and the parties' predivorce standard of living" (

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