In the Matter of Wasyliw v. Smith

• Citation: 2005 NY Slip Op 03726,18 A.D.3d 931,794 N.Y.S.2d 507
• Decision Date: 05 May 2005
• Docket Number: 96635.
• Parties: In the Matter of PATRICIA H. WASYLIW, Respondent, v. JEFFREY C. SMITH, Appellant.
• Court: New York Supreme Court Appellate Division

18 A.D.3d 931

794 N.Y.S.2d 507

2005 NY Slip Op 03726

In the Matter of PATRICIA H. WASYLIW, Respondent, v. JEFFREY C. SMITH, Appellant.

96635.

Appellate Division of the Supreme Court of the State of New York, Third Department.

May 5, 2005.

Appeal from an order of the Family Court of Tompkins County (Rowley, J.), entered March 9, 2004, which granted petitioner's application, in a proceeding pursuant to Family Ct Act article 4, for modification of a prior order of support.

Kane, J.

The parties are the divorced parents of one child. Their 1988 separation agreement provided that respondent "shall pay to [petitioner] as and for the support of the child such sums as the parties may agree upon but not less than $75.00 per week, during the child's minority." The agreement provided that respondent would pay additional support in the form of medical insurance and that the parties would each contribute to the child's college expenses in proportion to their respective incomes. If the child sought higher education, "the parties agree[d] that any monthly support payable to [petitioner] under this agreement, shall not be affected in any way until emancipation of the child." Respondent regularly paid petitioner $75 per week under the agreement, as well as his proportion of the child's college expenses. Petitioner filed a petition to modify or enforce the separation agreement's support provisions, seeking 17% of respondent's income as child support.

At a hearing, the parties stipulated that they would cover all of the child's college expenses in their pro rata shares, with respondent's share amounting to 64%. They disagreed as to whether petitioner was entitled to an upward modification of the weekly child support payments. Following the hearing, the Support Magistrate increased respondent's support payments to $725.33 per month retroactive to the date the petition was filed. Respondent filed objections to the Support Magistrate's findings. Family Court denied the objections and affirmed the decision, prompting respondent to appeal.

Family Court properly determined that a higher amount of child support was appropriate. "A separation agreement is a contract subject to the principles of contract construction and interpretation" (Matter of Meccico v Meccico, 76 NY2d 822, 823-824 [1990] [citation omitted]). Where the agreement's language is clear and unambiguous, the court must determine the intent of the parties based on that language without resorting to extrinsic evidence (see id. at 824; Matter of Kurzon v Kurzon, 246 AD2d 693, 694 [1998]). The separation agreement here stated that weekly support would be paid in an amount agreed upon by the parties, with a minimum amount of $75. When petitioner no longer agreed to accept the minimum amount, she was free to seek an appropriate amount by filing a support petition. She was not actually seeking to deviate from the separation agreement, but to enforce the agreement by...