Leone v. Leone

• Decision Date: 22 February 1988
• Citation: 525 N.Y.S.2d 253,137 A.D.2d 753
• Parties: In the Matter of Susan LEONE, Appellant, v. Vincent LEONE, Respondent.
• Court: New York Supreme Court — Appellate Division

Page 253

525 N.Y.S.2d 253

137 A.D.2d 753

In the Matter of Susan LEONE, Appellant, v. Vincent LEONE, Respondent.

Supreme Court, Appellate Division,

Second Department.

Feb. 22, 1988.

DiMascio, Meisner & Koopersmith, Carle Place (Glenn S. Koopersmith and John P. DiMascio, of counsel), for appellant.

Patrick J. Morganelli, Hempstead, for respondent.

Before MANGANO, J.P., and BRACKEN, SPATT and HARWOOD, JJ.

MEMORANDUM BY THE COURT.

In a support proceeding pursuant to Family Court Act article 4, the petitioner wife appeals from an order of the Family Court, Nassau County (Moody, H.E.), entered March 7, 1986, which granted the respondent husband's application for a reduction of the amount of child support awarded in a judgment of divorce from $750 per month for the two children of the parties to $70 per week. The petitioner's objections to that order were overruled in an order of the same court, dated July 2, 1986.

ORDERED that the order entered March 7, 1986, is reversed, without costs or disbursements, the order dated July 2, 1986, is vacated, and the matter is remitted to the Hearing Examiner to determine whether there should be a reduction in child support based only on the facts which occurred between May 30, 1985, the date of a stipulation between the parties, and August 28, 1985, the date the instant application for downward modification of child support was made.

Pursuant to a separation agreement dated March 14, 1983, the respondent was obligated to pay $750 per month to the petitioner as child support for the two infant issue of the marriage. The parties were granted a conversion divorce on June 5, 1984, and the separation agreement was incorporated but not merged into the judgment.

In February 1985 the respondent moved in the Supreme Court, Nassau County, for a downward modification of child support and the petitioner moved in the same court, inter alia, for enforcement of the judgment and arrears. In settlement of both motions, a "so ordered" stipulation was entered on May 30, 1985, in the Supreme Court, Nassau County (Burstein, J.), which determined an allocation of the proceeds upon the sale of the marital premises.

The stipulation was read into the record and commenced as follows:

"MR. DIMASCIO [Petitioner's Attorney]: It is hereby stipulated and agreed by and between the respective parties and their attorneys, that both of the proceedings presently before this Court, based upon the plaintiff's application seeking various forms of enforcement relief against the defendant, and defendant's application for a downward modification of * * * child support obligation, are hereby settled on the following terms and conditions".

It is noted that, pursuant to the terms of the stipulation and settlement, the former marital residence was sold and the respondent received the sum of approximately $50,000 from the proceeds, the petitioner received in excess of $100,000 and the sum of $38,000 was placed in an escrow account to secure the future payment of child support.

On August 28, 1985, the respondent again sought to reduce his child support payments, this time in the Family Court, Nassau County, and the matter was referred to a Hearing Examiner.

Although the Hearing Examiner explicitly acknowledged that she had no authority to review the change of financial circumstances prior to the May 30,...