Manno v. Manno

• Decision Date: 02 August 1993
• Parties: Judith MANNO, Respondent, v. Richard MANNO, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 968

600 N.Y.S.2d 968

196 A.D.2d 488

Judith MANNO, Respondent, v. Richard MANNO, Appellant.

Supreme Court, Appellate Division,

Second Department.

Aug. 2, 1993.

Ruskin, Schlissel, Moscou, Evans & Faltischek, P.C., Mineola (Stephen W. Schlissel, of counsel), for appellant.

Kantrowitz & Goldhamer, P.C., Chestnut Ridge (Amy Baldwin Littman, on the brief), for respondent.

Before SULLIVAN, J.P., and EIBER, PIZZUTO and JOY, JJ.

MEMORANDUM BY THE COURT.

In an action for a divorce and ancillary relief, the defendant former husband appeals, as limited by his brief, from so much of a judgment of the Supreme Court, Rockland County (Meehan, J.), dated February 28, 1991, as (1) directed him to pay $1,776.25 per month in basic child support, (2) directed him to pay 56% of the costs of each child's college tuition, room, and board, up to a maximum of $6,000 for his daughter Teresa, and $3,360 per child for each of the other children, and (3) denied, without a hearing, his application to set aside a stipulation of settlement dated June 6, 1990.

ORDERED that the judgment is modified, on the law and facts, by deleting (a) the provision thereof which directed the defendant former husband to pay $1776.25 per month, and (b) the provision thereof directing the husband to pay 56% of the costs of the children's college tuition, room, and board; as so modified, the judgment is affirmed insofar as appealed from, without costs or disbursements, and the matter is remitted to the Supreme Court, Rockland County, for a new determination of the husband's basic child support obligation, as well as any obligation for educational expenses for the children, should the court find it appropriate to impose such an obligation; and it is further ORDERED that pending that new determination, the defendant former husband shall pay child support of $1,650 per month, pursuant to the pendente lite award.

The plaintiff former wife and the defendant former husband were married in July 1967. There are eight children of the marriage. At the time of the trial of the action, three of the children were in college, the oldest of whom was 21 years old and in her senior year. A fourth child was getting ready to enter college.

Prior to the trial, the parties entered into a stipulation in open court wherein they resolved all issues pertaining to equitable distribution of their assets. Thus, the only issues upon which a trial was held were basic child support, educational expenses, and medical and dental care for the children. At the trial it was established that the husband's gross annual income was $60,500, plus $400 in investment income, for a total of $60,900. The wife's annual income was $48,000.

After testimony of both parties had been taken, the husband personally made an oral application to set aside the stipulation of settlement on the grounds, inter alia, that he was under extreme emotional distress and did not appreciate the nature and consequences of his actions at the time he agreed to its terms, that the terms of the agreement were unconscionable, and that, in any event, the wife materially breached the terms of the agreement. The court denied the application.

We find that the court properly denied the husband's motion to set aside the stipulation of settlement. A stipulation entered into in open court is binding and strictly enforceable (see, Tinter v. Tinter, 96 A.D.2d 556, 465 N.Y.S.2d 238), and may only be set aside upon a showing of fraud, collusion, mistake, accident, or some other ground of a similar nature (see, Alfonso v. Pollicino, 128 A.D.2d 576, 512 N.Y.S.2d 842; Stiber v. Stiber, 65 A.D.2d 758, 409 N.Y.S.2d 765; Rado v. Rado, 51 A.D.2d 811, 380 N.Y.S.2d 273). Here, the husband failed to make a prima facie showing of any of these factors. Moreover, we find nothing unconscionable about the settlement. We further note that the former husband was represented by competent counsel during the negotiations leading up to the settlement.

Using the figures of $60,900 for the former husband's annual income and $48,000 for the former wife's annual income, the court determined that the defendant should pay 35% of his gross income (or $21,315) as basic child support. With respect to educational expenses, the court noted that the defendant's income was approximately 56% of the combined income of the parties. It, therefore, directed the defendant to pay 56% of the cost of college tuition, room and board, up to a maximum of $6,000 per year for his daughter Teresa, and up to a maximum of $3,360 per child per year for each of the other children. Applying the same formula, the court directed the defendant to pay 56% of all unreimbursed medical and dental costs of the children.

We find that the trial court erred in its calculation of the husband's basic child support obligation.

Domestic Relations Law § 240(1-b)(c) provides, in pertinent part, that in determining the amount of the basic child support obligation, the court shall: (1) determine the combined parental income, (2) multiply the combined parental income up to $80,000 by the appropriate child support percentage, and prorate that amount in the same proportion as each parent's income is to the combined parental income, and (3) where the combined parental income exceeds $80,000, determine the amount of child support for the amount of the combined parental income in excess of $80,000 by considering facts set forth in Domestic Relations Law § 240(1-b)(f) and/or the appropriate child support percentage. The factors which are to be considered include the financial resources of the custodial and noncustodial parents, and those of the child, the tax consequences to the parties, and a determination that the gross income of one parent is substantially...