Maille v. Maille

• Decision Date: 22 October 1998
• Parties: , 1998 N.Y. Slip Op. 9100 In the Matter of Lisa A. MAILLE, Respondent, v. Gary E. MAILLE II, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 814

678 N.Y.S.2d 814

254 A.D.2d 597, 1998 N.Y. Slip Op. 9100

In the Matter of Lisa A. MAILLE, Respondent, v. Gary E. MAILLE II, Appellant.

Supreme Court, Appellate Division Third Department.

Oct. 22, 1998.

Eggleston & Eggleston (Jessica C. Eggleston of counsel), Saratoga Springs, for appellant.

Bartlett, Pontiff, Stewart & Rhodes P.C. (James E. Burkett of counsel), Glens Falls, for respondent.

Before CARDONA, P.J., MIKOLL, CREW, WHITE and CARPINELLO, JJ.

CREW, Justice.

Appeal from an order of the Family Court of Warren County (Austin, J.), entered August 19, 1997, which dismissed respondent's application, in a proceeding pursuant to Family Court Act article 4, for a downward modification of his child support obligation.

The parties were married in February 1988 and have two children. Following respondent's departure from the marital residence, which apparently occurred in August 1995, petitioner filed applications seeking custody of the minor children and child support. Thereafter, by separate orders dated October 10, 1995, Family Court awarded the parties joint custody of the children, with primary physical custody to petitioner and liberal visitation to respondent, and directed that respondent pay support in the amount of $330.77 biweekly.

Petitioner thereafter filed a petition and supplemental petition seeking recovery of certain unpaid day care and uncovered medical expenses and, insofar as is relevant to this appeal, respondent cross-petitioned for a downward modification of his child support obligation on February 11, 1997. ¹ Additionally, although not entirely clear from the record, it appears that respondent at some point commenced an action for divorce upon the ground of cruel and inhuman treatment and that petitioner answered and counterclaimed for similar relief.

Thereafter, on May 12, 1997, the parties entered into a written separation agreement that incorporated, but did not merge, inter alia, the October 10, 1995 order governing respondent's child support obligation. The separation agreement further acknowledged the then-pending modification proceeding and provided that "[a]ny order[ ] by the court in connection with [said] petition shall be deemed an amendment to this Agreement with the terms of such Order, to be incorporated, but not merged, in this Agreement". A judgment of divorce, which incorporated but did not merge both the separation agreement and the October 10, 1995 support order, was entered on June 11, 1997. The matter proceeded to a hearing in August 1997, at the conclusion of which Family Court dismissed respondent's application for a downward modification of his child support obligation. This appeal by respondent ensued.

We affirm. Although there appears to be some dispute as to the appropriate standard of review to be applied, this issue need not detain us, as even a cursory review of the record reveals that respondent's proof falls far short of establishing a basis for modification. ²

The stated basis for respondent's application was two-fold: petitioner's decision to file for bankruptcy which, respondent argued, caused him to assume certain marital debt, and the alleged increase in visitation with his children. As a starting point, regardless of when respondent learned of pet...