Healey v. Healey

• Decision Date: 25 February 1993
• Parties: , 81 Ed. Law Rep. 489 In the Matter of Mary Ann HEALEY, Appellant-Respondent, v. Richard HEALEY, Respondent-Appellant.
• Court: New York Supreme Court — Appellate Division

Page 90

594 N.Y.S.2d 90

190 A.D.2d 965, 81 Ed. Law Rep. 489

In the Matter of Mary Ann HEALEY, Appellant-Respondent, v. Richard HEALEY, Respondent-Appellant.

Supreme Court, Appellate Division,

Third Department.

Feb. 25, 1993.

Carola and Di Domenico (Robert Cohen, Ballston Lake, of counsel), Mechanicville, for appellant-respondent.

Farer, Wardlaw, Aceti, Berger & Haviland (Donna E. Wardlaw, of counsel), Saratoga Springs, for respondent-appellant.

Before WEISS, P.J., and MIKOLL, YESAWICH, CREW and CASEY, JJ.

CREW, Justice.

Cross appeals from an order of the Family Court of Saratoga County (Ferradino, J.), entered October 31, 1991, which, inter alia, partially granted respondent's cross petition, in a proceeding pursuant to Family Court Act article 4, to modify respondent's child support obligation.

The parties were married in September 1967 and have two children, Anne and Michael. ¹ In July 1983, the parties entered into an oral stipulation, incorporated but not merged into the judgment of divorce, setting forth, inter alia, respondent's child support obligation. In accordance with the stipulation, respondent was to pay petitioner child support in the amount of $225 per month per child until July 1, 1986 and, thereafter, $200 per month per child until each child reached age 18, at which time either party could petition for a modification of support if they could not mutually agree upon an amount. Petitioner thereafter commenced this modification proceeding and respondent cross-petitioned for similar relief. Following a hearing, the Hearing Examiner directed respondent to pay $200 per month in child support for Michael and college expenses for both children, including tuition, room, board, books and reasonable transportation expenses. ² Petitioner's request for counsel fees was denied. Family Court affirmed the Hearing Examiner's decision and these cross appeals followed.

Initially, we reject petitioner's contention that respondent's actions following the divorce point to the existence of a novation. In order to demonstrate a novation, four elements must be present: "(1) a previously valid obligation; (2) agreement of all parties to a new contract; (3) extinguishment of the old contract; and (4) a valid new contract" (Callanan Indus. v. Micheli Contr. Corp., 124 A.D.2d 960, 961, 508 N.Y.S.2d 711; see, 22 NYJur2d, Contracts, § 401, at 317-318). Contrary to petitioner's assertion, the mere fact that respondent voluntarily continued to make maintenance payments to petitioner for almost seven years after his obligation to do so ceased does not manifest a "clear and definite" intent to effect a novation (see, 22 NYJur2d, Contracts, § 406, at 321-322). Respondent testified that he provided petitioner with this additional sum because he thought that it was the "fair thing" to do and that his children would benefit as a result.

With respect to the award of child support, petitioner argues that the Hearing Examiner erred in determining that respondent was no longer obligated to pay child support for Anne. We cannot agree. Respondent is obligated to pay for Anne's tuition, room, board, books and reasonable travel expenses and apparently provides Anne with some clothing and spending money. In view of respondent's substantial obligations in this regard, we are unable to conclude that Family Court abused its discretion in upholding the Hearing Examiner's determination that no additional support award for Anne was warranted (see, Smith v. Smith, 154 A.D.2d 365, 366, 545 N.Y.S.2d 842; cf., Matter of Kirschner v. Kirschner, 119 A.D.2d 962, 963, 501 N.Y.S.2d 224). ³

Petitioner further argues that the Hearing Examiner should have applied the Child Support Standards Act (hereinafter CSSA) in calculating the support award for Michael. ⁴ "In accordance with Family Court Act § 413(1)(f), the court is required to order the noncustodial parent to pay his or her pro rata share of the basic child support obligation, unless the court determines that such share is unjust or inappropriate based upon a consideration of the 10 factors set forth therein * * * " (Matter of Holmes v. Holmes, 184 A.D.2d 185, 187, 592 N.Y.S.2d 72 [citations omitted]. Here, the Hearing Examiner found that the CSSA should not be applied due to the disparity in the parties' income (see, Family Ct Act § 413[1][f][1], [7], and we are satisfied that the Hearing Examiner adequately articulated a basis for deviating from the statutory formula (see, Bohnsack v. Bohnsack, 185 A.D.2d 533, 535, 586 N.Y.S.2d 369; cf., Matter of Kerr v. Bell, 178 A.D.2d 1, 4-5, 581 N.Y.S.2d 879 ["Hearing Examiner did not specifically mention any of the statutorily required factors that must be considered"] [emphasis supplied].

As for the actual amount of support awarded for Michael, it is well settled that where, as here, the parties entered into an agreement that was incorporated but not merged into the judgment of divorce, the party seeking the modification must demonstrate "an unanticipated and unreasonable change in circumstances, or that the agreement entered into by the parties was unfair when entered into * * * or that the child was not being adequately supported" (Brevetti v. Brevetti, 182 A.D.2d 606, 607, 581 N.Y.S.2d 859 [citation omitted]; see, Matter of McMullen v. Ambrosiani, 189 A.D.2d 973, 974, 592 N.Y.S.2d 504; Katz v. Katz, 188 A.D.2d 827, 827-828, 590 N.Y.S.2d 937; Matter of Bernstein v. Goldman, 180 A.D.2d 735, 736, 580 N.Y.S.2d 371). Petitioner has failed to present any evidence of fraud or overreaching and, therefore, the record does not support her claim that the agreement was unfair when entered into by the parties in 1983 (see, Reed v. Reed, 180 A.D.2d 1006, 580 N.Y.S.2d 572; Paul v. Paul, 177 A.D.2d 901, 902, 576 N.Y.S.2d 658, lv. denied 79 N.Y.2d 756, 583 N.Y.S.2d 192, 592 N.E.2d 800). Petitioner does not contend that the support paid for Michael is inadequate and we would find such a claim meritless in any event. Finally, although respondent's income has increased since the divorce, as has the cost of providing Michael with skating lessons, "courts generally do not modify an agreement with respect to child support based merely upon a parent's increased income and/or the increased needs of a growing child" (Brevetti v. Brevetti, supra, 182 A.D.2d at 608, 581 N.Y.S.2d 859; see, May May Cheng v. McManus, 178 A.D.2d 906, 908, 577 N.Y.S.2d 944). Accordingly, petitioner's application was properly denied. ⁵

We have examined petitioner's remaining arguments and find them to be lacking in merit. We are also of the view that the Hearing Examiner did not abuse his discretion in denying petitioner's request for counsel fees.

Turning to respondent's cross appeal, respondent correctly notes that "absent a voluntary agreement between the parties regarding the financing of a minor child's college education, a...