Hardman v. Coleman

• Decision Date: 19 October 2017
• Docket Number: 524290.
• Citation: 154 A.D.3d 1146,62 N.Y.S.3d 615
• Parties: In the Matter of Jacquelyn C. HARDMAN, Appellant, v. William J. COLEMAN III, Respondent. (And Another Related Proceeding.).
• Court: New York Supreme Court — Appellate Division

154 A.D.3d 1146
62 N.Y.S.3d 615

In the Matter of Jacquelyn C. HARDMAN, Appellant,
v.
William J. COLEMAN III, Respondent.

(And Another Related Proceeding.).

524290.

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

Oct. 19, 2017.

62 N.Y.S.3d 615

Law Office of John N. Clo, Gloversville (John N. Clo of counsel), for appellant.

62 N.Y.S.3d 616

Before: GARRY, J.P., EGAN JR., DEVINE, AARONS and RUMSEY, JJ.

EGAN JR., J.

154 A.D.3d 1146

Appeal from an order of the Family Court of Fulton County (Skoda, J.), entered September 2, 2016, which, among other things, dismissed petitioner's application, in two proceedings pursuant to Family Ct. Act article 4, to modify a support agreement incorporated into a judgment of divorce.

Petitioner (hereinafter the mother) and respondent (hereinafter the father) are the divorced parents of two children (born in 1998 and 2003). In 2008, prior to the parties' divorce, the father was awarded primary legal and physical custody of the children, with scheduled visitation to the mother. In April 2009, the parties entered into a stipulation and settlement agreement wherein they agreed to, among other things, abide by the terms of their prior custody order and, with regard to child support, deviate from application of the Child Support Standards Act (see Family Ct. Act § 413 [hereinafter CSSA] ). Specifically, the child support provisions of the agreement exempted the mother, as the noncustodial parent, from paying child support

154 A.D.3d 1147

to the father, but obligated her to pay, among other things, one half of the children's health insurance premiums and uncovered medical expenses. Supreme Court (J. Sise, J.) initially rejected the parties' proposed judgment of divorce, but, upon further inquiry of the parties, ultimately accepted the agreement and the incorporated stipulation agreeing to deviate from the CSSA. Thereafter, as part of the divorce action, the parties entered into an oral stipulation before Supreme Court modifying the terms of their 2008 custody order.¹ The parties ultimately finalized their divorce in January 2012, and the 2008 custody order, 2009 stipulation and settlement agreement and subsequent stipulations were incorporated, but not merged, with the judgment of divorce.

In 2014, the mother filed a support modification petition, seeking to have the father pay child support in accordance with CSSA guidelines, alleging, among other things, that an unanticipated change in circumstances had occurred–namely, that the mother had become the de facto custodian of the children by operation of the parties' modified custody arrangement. Thereafter, the father charged the mother with a willful violation of the parties' support agreement. Following a hearing on both petitions, the Support Magistrate dismissed the mother's modification petition for lack of proof and found that the mother had willfully violated the child support provisions of the 2009 agreement. The mother's subsequent written objections to the Support Magistrate's order (see Family Ct. Act § 439[e] ), in which she argued, among other things, that the child support provisions of the 2009 support agreement were invalid from their...