Katz v. Katz

• Decision Date: 22 December 1986
• Citation: 125 A.D.2d 549,509 N.Y.S.2d 625
• Parties: Grace Kinsey KATZ, Appellant, v. John KATZ, Respondent.
• Court: New York Supreme Court — Appellate Division

Page 625

509 N.Y.S.2d 625

125 A.D.2d 549

Grace Kinsey KATZ, Appellant, v. John KATZ, Respondent.

Supreme Court, Appellate Division,

Second Department.

Dec. 22, 1986.

Michael F. Erdheim, New York City (Lee A. Rubenstein, of counsel), for appellant.

Doris T. Freidman, White Plains, for respondent.

Before MANGANO, J.P., and WEINSTEIN, LAWRENCE and KOOPER, JJ.

MEMORANDUM BY THE COURT.

In an action for a divorce and ancillary relief, the plaintiff wife appeals from an order of the Supreme Court, Westchester County (Martin, J.), entered July 2, 1985, which denied her motion, inter alia, for an upward modification of the child support provisions of the parties' judgment of divorce, dated October 29, 1982.

ORDERED that the order is affirmed, with costs.

On April 21, 1982, the parties entered into a comprehensive separation agreement. Among the terms thereof was a provision that the defendant husband pay to the wife the sum of $416.67 per month for the support of each of the two issue of the marriage. A separate provision was included in the separation agreement pertaining to the children's college education. Section XXXI of the separation agreement provides as follows:

"The Wife states that in no event and under no circumstances, now or in the future, does she desire to require the Husband to make any further payment for her or the childrens' support, ordinary or extraordinary except in the event of a catastrophic happening, directly or indirectly other than as specifically set forth herein. It is understood that in the event of 'undue hardship' either the husband or the wife may make application to the Court for modification of this agreement only insofar as the child support provisions of this Agreement are concerned".

The separation agreement survived and was not merged in the ensuing judgment of divorce. The plaintiff thereafter moved, inter alia, to modify the judgment of divorce to increase the amount of child support, based essentially upon the defendant's substantially increased financial circumstances. Nowhere in the record is there evidence to support a conclusion that the current support provisions were inadequate to meet the children's reasonable needs.

In Matter of Brescia v. Fitts, 56 N.Y.2d 132, 451 N.Y.S.2d 68, 436 N.E.2d 518, which, like the instant case, involved a separation agreement which was not merged in the ensuing judgment of divorce, the Court of Appeals set forth the general rule that whether the evidence adduced by the parties shows a change of circumstances sufficient to warrant a modification is a question best left to the discretion of the trial court, whose primary goal is to make a determination based upon the best interests of the children. While courts are in apparent disagreement as to whether a substantial increase in the financial circumstances of the noncustodial parent, standing alone, is sufficient to warrant an upward modification of child support (see, Eisen v. Eisen, 48 A.D.2d 652, 367 N.Y.S.2d 554; Matter of Handel v. Handel, 32 A.D.2d 946, 304 N.Y.S.2d 76, affd. 26 N.Y.2d 853, 309 N.Y.S.2d 599, 258 N.E.2d 94; Matter of Goldberg v. Berger, 31 A.D.2d 637, 295 N.Y.S.2d 975; Matter of Kern v. Kern, 65 Misc.2d 765, 771, 319 N.Y.S.2d 178; cf. Matter of Gould v. Hannan, 44...