Kolodny v. Perlman

• Decision Date: 12 October 2016
• Citation: 38 N.Y.S.3d 613,2016 N.Y. Slip Op. 06709,143 A.D.3d 818
• Parties: In the Matter of Miriam S. KOLODNY, respondent, v. Joseph Y. PERLMAN, appellant. (Proceeding No. 1) In the Matter of Joseph Y. Perlman, appellant, v. Miriam S. Kolodny, respondent. (Proceeding No. 2).
• Court: New York Supreme Court — Appellate Division

143 A.D.3d 818

38 N.Y.S.3d 613

2016 N.Y. Slip Op. 06709

In the Matter of Miriam S. KOLODNY, respondent,

v.Joseph Y. PERLMAN, appellant. (Proceeding No. 1)

In the Matter of Joseph Y. Perlman, appellant,

v.Miriam S. Kolodny, respondent. (Proceeding No. 2).

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

Oct. 12, 2016.

Joseph Y. Perlman, Brooklyn, NY, appellant pro se.

Eli Yeger, Brooklyn, NY, for respondent.

RANDALL T. ENG, P.J., SHERI S. ROMAN, HECTOR D. LaSALLE, and BETSY BARROS, JJ.

Appeal by the father from an order of the Family Court, Kings County (Alan Beckoff, J.), dated June 23, 2015. The order denied the father's objections to seven orders of that court (Kathryn A. Baur, S.M.), all dated February 23, 2015, which respectively, after a hearing, (a) granted the mother's petition to enforce the child support provisions of the parties' stipulation of settlement, (b) in effect, denied, with prejudice, his petition for a downward modification of his child support obligation, (c) in effect, denied, with prejudice, his petition to adjudicate the mother in willful violation of the child support provisions of the stipulation of settlement, (d) denied, as academic, his motion to direct certain nonparties to comply with judicial subpoenas duces tecum dated October 17, 2014, (e) denied, as academic, his motion to direct the mother and certain nonparties to comply with judicial subpoenas duces tecum dated January 7, 2015, (f) denied, as academic, his motion to disqualify the mother's attorney and for a protective order vacating a notice for discovery and inspection of the mother, and (g) denied, as academic, his motion to impose a sanction on the mother's attorney for engaging in frivolous conduct.

ORDERED that the order dated June 23, 2015, is modified, on the law, (1) by deleting the provision thereof denying the father's objection to the first order dated February 23, 2015, which granted the mother's petition, and substituting therefor a provision granting that objection to the extent of remanding the matter to the Support Magistrate for a hearing and a new calculation of the father's income which excludes the amount of any bonuses earned by him and otherwise denying that objection, and (2) by deleting the provision thereof denying the father's objection to so much of the second order dated February 23, 2015, as, in effect, provided that the denial of his petition for a downward modification of his child support obligation was with prejudice, and substituting therefor a provision granting that objection and thereupon modifying the second order dated February 23, 2015, to provide that the denial of the father's petition for a downward modification of his child support obligation is without prejudice; as so modified, the order dated June 23, 2015, is affirmed, without costs or disbursements.

The parties, who were married on May 5, 2005, have three children together. Pursuant to the terms of a stipulation of settlement dated April 14, 2013, which was incorporated but not merged into a judgment of divorce dated August 15, 2013, the father was required to pay the sum of $1,094 semi-monthly for basic child support for the children, $187.50 semi-monthly for private school tuition charges, and one half of the children's summer camp expenses. The parties agreed in the stipulation that in the event that the father's salary “shall increase by any amount other than by an increase based upon a bonus that he receives, which is accounted for [in another provision], the child support, tuition obligation and summer camp obligation ... shall increase by the same percentage as the increase in the [father]'s base salary.”

In April 2014, the mother commenced a child support proceeding pursuant to Family Court Act article 4 to enforce the child support provisions of the stipulation by increasing the father's child support obligation based on an increase in his salary, in accordance with the stipulation's modification provision. Subsequently, in January 2015, the father filed a petition for a downward modification of his child support obligation and a separate petition to adjudicate the mother in willful violation of the stipulation's child support provisions. The father also moved, among other things, to direct the mother and certain nonparties to comply with judicial subpoenas duces tecum, for a protective order vacating a notice for discovery and inspection of the mother, and to disqualify the mother's attorney.

After a consolidated hearing, the Support Magistrate granted the mother's petition and recalculated the father's child support obligation based on an increase in the father's salary. The Support Magistrate awarded the mother child support of $1,883.50 semi-monthly, consisting of $1,608 semi-monthly for basic child support and $275.50 semi-monthly for tuition costs, and directed the father to pay 73.5% of future summer camp expenses. In addition, the Support Magistrate, in effect, denied the father's petitions with prejudice, and denied the father's motions as academic. The father filed objections to the Support Magistrate's determinations, and the Family Court denied his objections. The father appeals from the order denying his objections.

The Family Court correctly denied the father's objection to the Support Magistrate's determination that he failed to establish a change in circumstances that would warrant a downward modification of his child support obligation. The parties' stipulation was executed after the effective date of the 2010 amendments to Family Court Act § 451 (see L. 2010, ch. 182, § 13). Thus, in order to establish his entitlement to a downward modification of his child support obligation, the father, who did not rely on the modification provision in the parties' stipulation, “had the burden of establishing ‘a substantial change in circumstances' ” (Matter of Lagani v. Li, 131 A.D.3d 1246, 1247–1248, 16 N.Y.S.3d 863, quoting Matter of Pepe v. Pepe, 128 A.D.3d 831, 834, 9 N.Y.S.3d 161 ; see Family Ct. Act § 451[3] [a] ). “When...