Kinsella v. Kinsella

• Decision Date: 15 July 1994
• Citation: 206 A.D.2d 889,614 N.Y.S.2d 832
• Parties: Deborah KINSELLA, Respondent, v. Lawrence KINSELLA, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 832

614 N.Y.S.2d 832

206 A.D.2d 889

Deborah KINSELLA, Respondent, v. Lawrence KINSELLA, Appellant.

Supreme Court, Appellate Division, Fourth Department.

July 15, 1994.

Berkowitz, Pace & Cooper by Leonard Berkowitz, Orchard Park, for appellant.

Gough, Skipworth, Summers, Eves & Trevett, P.C. by James Valenti, Rochester, for respondent.

Before DENMAN, P.J., and LAWTON, CALLAHAN and DAVIS, JJ.

MEMORANDUM:

Supreme Court erred in granting that part of the application of plaintiff seeking an upward modification of child support in contravention of the parties' modified separation agreement because her proof failed to establish that the child's needs were not being met (see, Matter of Brescia v. Fitts, 56 N.Y.2d 132, 141, 451 N.Y.S.2d 68, 436 N.E.2d 518) or that an unanticipated and unreasonable change in circumstances had occurred (see, Boden v. Boden, 42 N.Y.2d 210, 213, 397 N.Y.S.2d 701, 366 N.E.2d 791). The conclusory assertions of plaintiff of increased costs related to basic necessities of food and clothing for the child resulting from his maturing, without documentary or other supporting proof, are insufficient to establish that the child's needs are not being met (see, Tuchrello v. Tuchrello, 204 A.D.2d 1020, 613 N.Y.S.2d 86; Webb v. Webb, 197 A.D.2d 847, 602 N.Y.S.2d 275; Matter of Tripi v. Faiello, 195 A.D.2d 958, 600 N.Y.S.2d 876, appeal dismissed 82 N.Y.2d 803, 604 N.Y.S.2d 560, 624 N.E.2d 698; Labita v. Labita, 147 A.D.2d 535, 536, 537 N.Y.S.2d 835).

It was also error for the court to impute the income of defendant's wife to defendant in determining the amount of his basic child support obligation pursuant to the parties' agreement. The unambiguous language of that agreement establishes that the child support obligation of defendant was to be based on a percentage of his yearly gross income as reflected in his W-2 and 1099 forms. We, therefore, modify the order appealed from by deleting the first, fourth and fifth ordering paragraphs, and remit the matter to Supreme Court to determine the basic child support obligation of defendant as of the date of the petition based on his yearly gross income.

We have reviewed the remaining contentions of defendant and find them to be without merit.

Order unanimously modified on the law and as modified affirmed without costs and matter remitted to Supreme Court for further proceedings.