Meccico v. Meccico

• Decision Date: 05 April 1990
• Citation: 160 A.D.2d 1052,553 N.Y.S.2d 540
• Parties: In the Matter of Encarnacion MECCICO, Respondent, v. Frank MECCICO, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 540

553 N.Y.S.2d 540

160 A.D.2d 1052

In the Matter of Encarnacion MECCICO, Respondent, v. Frank MECCICO, Appellant.

Supreme Court, Appellate Division Third Department.

April 5, 1990.

Fitzpatrick, Trombley, Owens & Lahtinen (Robert A. Goldstein, of counsel), Plattsburgh, for appellant.

Meconi & Meconi (William T. Meconi, of counsel), for respondent.

Before KANE, J.P., and YESAWICH, LEVINE, CASEY and MIKOLL, JJ.

KANE, Justice Presiding.

Appeal from an order of the Family Court of Clinton County (Feinberg, J.), entered September 9, 1988, which, inter alia, granted petitioner's application, in a proceeding pursuant to Family Court Act article 4, to direct respondent to pay petitioner spousal maintenance.

The parties herein were married in 1961 and separated in January 1972 pursuant to a separation agreement which provided, inter alia, that:

The [respondent] HUSBAND agrees to pay the sum of THREE HUNDRED DOLLARS ($300.00) per month for the support of his three children until the said children reach maturity or become emancipated, whichever comes first and the sum of ONE HUNDRED FIFTY DOLLARS ($150.00) per month to the [petitioner] WIFE for rental. The obligation of the [respondent] HUSBAND with respect to the amount payable herunder [sic ] shall survive his death and shall constitute a charge upon his estate in respect to support of the children.

A 1973 judgment of divorce provided that the separation agreement survived "but may be modified by Order of this Court upon" respondent's application.

In July 1985, petitioner filed a petition with Family Court to modify support. Family Court subsequently issued an order of support which, inter alia, provided that respondent was to pay petitioner $250 per month as child support for the parties' one remaining dependent child and that "[s]aid sum is in lieu of $150.00 rent as specified in the Separation Agreement". In October 1987, respondent filed a petition to modify the 1985 support order so that his support payments would cease upon the youngest child attaining the age of 21. In November 1987, a Family Court Hearing Examiner issued an order which, inter alia, directed that upon the date the minor child attained the age of 21, respondent's support obligation would terminate.

In April 1988, petitioner filed a petition to modify Family Court's 1987 order contending that she was unaware that the $250 monthly payments previously made by respondent were exclusively for child support and that she considered a portion as spousal maintenance payments that were not meant to terminate when the parties' youngest child attained the age of 21. The Family Court Hearing Examiner transferred petitioner's petition to Family Court which, in September 1988, granted the petition to modify support and found, inter alia, that pursuant to the parties' separation agreement, respondent was obligated to continue paying petitioner $150 per month for spousal maintenance. This appeal by respondent ensued.

We reverse. Initially, we reject respondent's argument that Supreme Court retained exclusive jurisdiction over the divorce judgment and therefore Family Court was precluded from determining that the separation agreement provided for spousal maintenance. Where Supreme Court is silent on the issue of Family Court jurisdiction, Family Court may consider a petition to modify a divorce judgment based on the requisite change in circumstances (see, Family Ct Act § 466[c]; Zuckerman v. Zuckerman, 154 A.D.2d 666, 546...