Kern v. Kern

• Decision Date: 04 December 1970
• Citation: 65 Misc.2d 765,319 N.Y.S.2d 178
• Parties: . Gladys KERN, * f.b.o. Bunny Kern *, Jo Ann Kern*, Petitioner, v. Carlos KERN, * Respondent. Family Court of City of New York, New York County
• Court: New York City Court

Page 178

319 N.Y.S.2d 178

65 Misc.2d 765

In the Matter of a Proceeding for Support under Article 4 of the Family Court Act Gladys KERN, ^* f.b.o. Bunny Kern *, Jo Ann Kern* Petitioner, v. Carlos KERN, * Respondent.

Family Court of City of New York, New York County.

Dec. 4, 1970.

Lauterstein & Lauterstein, New York City, Jacob L. Isaacs, New York City, of counsel, for petitioner.

Blumenthal, Barandes, Moss, Matson & Arnold, New York City, Gerald Barandes, New York City, of counsel, for respondent.

DECISION AND ORDER

M. MICHAEL POTOKER, Judge.

In this proceeding initiated pursuant to Section 466(c) of the Family Court Act, petitioner seeks to modify the provisions of a Mexican divorce decree entered on January 30, 1967, which confirmed a separation agreement entered into by the parties providing inter alia for the support and maintenance of petitioner and the two issue of the marriage.

Petitioner's application is based upon a change of circumstances occurring since the entry of the divorce decree including the increased cost of living as reflected by the Consumers' Price Index maintained by the Federal Bureau of Labor Statistics, the increased needs of the children as they grow out of infancy, the inadequacy of the amount previously agreed to by the parties and the increased means of respondent father.

The initial question facing the court is whether or not a separation agreement containing an escalator clause providing for automatic upward modification of support payments for children incorporated into a Mexican divorce decree bars, as a matter of law, a subsequent action for upward modification based on change of circumstances under 466(c) of the Family Court Act?

Respondent herein concedes that 466(c) was enacted subsequent to the execution of the separation agreement and the entry of the divorce decree and might otherwise take precedence and authorize an action pursuant thereto. But, he argues, why disturb a decree which specifically covers the very protective measures intended by 466(c) against the freezing of child support without regard to its increased needs or the increased financial means of the father.

The escalation clause in question (Paragraph Thirteenth (d) of the agreement) reads:

'There shall be an additional annual amount payable to the Wife for the maintenance and support of the Wife and the children, i.e., twenty (20%) percent of the Husband's gross earned income during 1967 and thereafter, (exclusive of dividends, interest, capital gains, and income from investments in real estate) exceeding $20,000 a year. In computing the amount so payable the Husband shall be credited on account thereof amounts paid, if any, for tuition or any other expenses for the education of the children, or either of them. Said amount shall be payable by the Husband on a monthly basis and shall be computed from year to year as determined by the Husband's earned income in any year as reflected on his Federal income tax return. The Husband agrees to furnish to the wife a copy of his annual Federal income tax return before fifteen days have elapsed from the filing of the tax return in any year, but not earlier than May 1st commencing with 1968, so that she will be in a position to verify the amount of the Husband's earned income in any year.'

Respondent relies heavily upon Halpern v. Klebanow, 21 A.D.2d 858, 251 N.Y.S.2d 170, wherein the Appellate Division, First Department, limited the Family Court's power to override a separation agreement to a compelling change of circumstances on the part of either party. The Court stated as follows:

'The parties herein entered into a separation agreement which contained carefully arrived at provisions regulating the custody, control and support of three minor children. The husband not only agreed to pay $3,000 per annum for each child but also assumed the payment of any medical and dental expenses, the cost of attendance at private schools or college, and the cost of attendance at summer camps. There is no claim that the husband did not meet his obligations under the separation agreement. Nor can there by any serious argument made that the stipulated provisions for support were not satisfactory and reasonable at the time the agreement was made. Although power resided in the Domestic Relations Court to order support for children, despite the existence of a separation agreement, that power was not to be exercised where a separation agreement made adequate provision for support and there was no showing of a compelling change of circumstances of the respective parties.'

Although Halpern v. Klebanow, Supra, was decided prior to the enactment of section 466(c) of the Family Court Act, respondent now submits that its interpretation is still valid and relevant. Respondent further argues that where as here the petitioner has not claimed that the terms of the 1966 agreement were not acceptable and reasonable when made and where the escalation clause provides for increased obligations for the respondent if his earnings were to increase the Family Court should not override the original contractual wishes of the parties and impose its own determination.

Respondent distinguishes the cases cited in petitioner's memorandum, Handel v. Handel, 32 A.D.2d 946, 304 N.Y.S.2d 76, aff'd. 26 N.Y.2d 853, 309 N.Y.S.2d 599, 258 N.E.2d 94, Schwartz v. Schwartz, 48 Misc.2d 859, 265 N.Y.S.2d 820, and Rudnick v. Rudnick, 55 Misc.2d 532, 285 N.Y.S.2d 996 since those cases involved situations in which no provisions for escalation were contained in separation agreements incorporated into foreign divorce decrees, and consequently the provisions of the Family Court Act were available for increased support in those situations in which the financial condition of a father is improved.

Respondent further points to the fact that under the escalation formula respondent expended more than twice the $3,000 annual base on behalf of the children for the calendar year 1969 without court action.

Respondent's contention is overruled both as a matter of law and as it pertains to the particular facts herein. Section 466 of the Family Court Act, as amended L.1965, c. 355, effective September 1, 1965, specifically grants to the Family Court the power to entertain applications to enforce and modiy alimony and support provisions of foreign decrees on the ground that there has been a subsequent change of circumstances and that modification is required. See Seitz v. Drogheo, 21 N.Y.2d 181, 287 N.Y.S.2d 29, 234 N.E.2d 209, which upheld the constitutionality of the amendment (paragraph (c)) to section 466.

The very heart of the issue placed before the court is petitioner's claim that the support provisions including the escalation clause do not adequately provide for the support and maintenance of her children in accordance with the means of respondent and that the change of circumstances which she puts forth is compelling enough for the court to grant an upward modification.

The basic right of a minor child to be supported by its parents is not affected by an agreement between the parties with respect to such obligation. Children are not chattels whose rights can be bargained away by parents (Bachman v. Mejias, 1 N.Y.2d 575, 154 N.Y.S.2d 903, 136 N.E.2d 866) and hence they cannot be bound by the support provisions contained in separation agreement (Moat v. Moat, 27 A.D.2d 895, 277 N.Y.S.2d 921; Kulok v. Kulok, 20 A.D.2d 568, 245 N.Y.S.2d 859; Matter of Goldberg v. Goldberg, 57 Misc.2d 224, 291 N.Y.S.2d 482).

In Moat v. Moat, Supra, decided by the Appellate Division, Third Department, in March 1967, the Court stated as follows: 'It is true, of course, that minor children are not parties to a separation agreement executed by their parents, and the courts are not bound by the support provisions contained in a separation agreement but are required to provide for the support and welfare of minor children as justice requires. (Domestic Relations Law, § 240; Family Court Act, § 461; Kulok v. Kulok, Supra; Brock v. Brock, 4 A.D.2d 747, 164 N.Y.S.2d 539; Van Dyke v. Van Dyke, 278 App.Div. 446, 106 N.Y.S.2d 237 (3d Dept.), affd. 305 N.Y. 671, 112 N.E.2d 766; Dolan v. Dolan, 271 App.Div. 851, 66 N.Y.S.2d 70 (3d Dept.), affd. 296 N.Y. 860, 72 N.E.2d 603; Kunker v. Kunker, 230 App.Div. 641, 246 N.Y.S. 118 (3d Dept.); 16 N.Y.Jur., Dom. Rel. § 546)'.

Since the obligation of the father to support his children is a basic and fundamental right belonging to the children, such a right cannot be abrogated or derogated by a prior agreement between the parents, and the Family Court is not bound by the support provisions of a separation agreement or of a foreign divorce decree incorporating said provisions where the evidence sustains the allegations of a change of circumstances since entry of the decree.

In Laumeier v. Laumeier, 237 N.Y. 357, 143 N.E. 219, the Court of Appeals said: 'The husband did not divorce his child, or dissolve his liabilities to it. And what are those rights? The child is entitled to the support and maintenance by its father.'

Such agreements are however not invalid and courts will not arbitrarily disregard them. While the agreement is not binding on the court it will nonetheless be evaluated with the best interests of the child as its criteria for acceptance (Emrich v. McNeil, 75 U.S.App.D.C. 307, 126 F.2d 841; Pegram v. Pegram, 310 Ky. 86, 219 S.W.2d 772; 'Child Support--Protecting the Child's Interests', Wade R. Bosley, Family Law Quarterly, Section of Family Law, American Bar Association, Volume IV, Number 3, September, 1970).

Of course, once having been incorporated into a divorce decree without reservation, the agreement is no longer in question but is now part of a court order that is based upon the prevailing equities including a proven change of circumstances (Sections 461 and 466(c) of the Family Court Act).

The escalation clause is found to be defective on two other grounds: 1) Its failure to...