In the Matter of Elizabeth Cooper v. Cooper

• Decision Date: 11 June 2010
• Parties: In the Matter of Elizabeth COOPER, Petitioner–Appellant–Respondent,v.Richard L. COOPER, Respondent–Respondent–Appellant.
• Court: New York Supreme Court — Appellate Division

74 A.D.3d 1868
901 N.Y.S.2d 887
2010 N.Y. Slip Op. 05203

In the Matter of Elizabeth COOPER, Petitioner–Appellant–Respondent,
v.
Richard L. COOPER, Respondent–Respondent–Appellant.

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

June 11, 2010.

[74 A.D.3d 1868] Appeal and cross appeal from an order of the Family Court, Erie County (Rosalie Bailey, J.), entered April 15, 2009 in a proceeding pursuant to Family Court Act article 4. The order, inter alia, dismissed the petition.Law Offices of Palmer, Murphy & Tripi, Buffalo (Deanne M. Tripi of Counsel), for petitioner–appellant–respondent.David J. Pajak, Alden, for respondent–respondent–appellant.MEMORANDUM:

In this support proceeding pursuant to Family Court Act article 4, petitioner mother appeals and respondent father cross-appeals from an order that granted the objections of the father and dismissed without prejudice the mother's petition for an award of child support. Initially, we agree with the mother that Family Court had jurisdiction over this support proceeding where, as here, the parties entered into a separation agreement that was not merged into the judgment of divorce (see § 461[a] ). Contrary to the further contention of the mother, however, the court properly dismissed her petition.

The court may modify a separation agreement with respect to child support only “upon a showing that the agreement was not fair and equitable when entered into, or that an unanticipated and unreasonable change in circumstances has occurred[,] resulting in a concomitant need” for increased support ( Merl v. Merl, 67 N.Y.2d 359, 362, 502 N.Y.S.2d 712, 493 N.E.2d 936; see generally Matter of Boden v. Boden, 42 N.Y.2d 210, 213, 397 N.Y.S.2d 701, 366 N.E.2d 791). Contrary to the contention of the mother, she failed to establish or indeed, even to allege, that the agreement was unfair or that there was the requisite change in circumstances.

We conclude, however, that the cross appeal by the father must be dismissed because he is not an “aggrieved party” and [74 A.D.3d 1869] thus lacks standing to appeal (CPLR 5511). The court granted the father's objections and dismissed the petition, and the father thus received all the relief he requested. The fact that the order contains language or reasoning that the father deems adverse to his interests does not provide him with “a basis for standing to take an appeal” ( Pennsylvania Gen. Ins. Co. v. Austin Powder Co., 68 N.Y.2d 465, 472–473, 510 N.Y.S.2d 67, ...