Moss v. Moss

• Decision Date: 17 January 2012
• Citation: 937 N.Y.S.2d 270,91 A.D.3d 783,2012 N.Y. Slip Op. 00377
• Parties: In the Matter of Alan MOSS, appellant, v. Faye MOSS, respondent.
• Court: New York Supreme Court — Appellate Division

2012 N.Y. Slip Op. 00377
91 A.D.3d 783
937 N.Y.S.2d 270

In the Matter of Alan MOSS, appellant,
v.
Faye MOSS, respondent.

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

Jan. 17, 2012.

[937 N.Y.S.2d 271]

Alan Moss, Yorktown Heights, N.Y., appellant pro se.

Faye Goldstein, formerly known as Faye Moss, Croton–on–Hudson, N.Y., respondent pro se.

REINALDO E. RIVERA, J.P., SHERI S. ROMAN, SANDRA L. SGROI, and JEFFREY A. COHEN, JJ.

[91 A.D.3d 783] In a child support proceeding pursuant to Family Court Act article 4, the father appeals from an order of the Family Court, Westchester County (Schauer, J.), dated March 8, 2011, which denied his objections to so much of an order of the same court (Furman, S.M.), dated January 11, 2011, as dismissed his petition for modification of his child support obligation.

ORDERED that the order dated March 8, 2011, is affirmed, with costs.

The father sought to modify his support obligation with regard to the parties' younger daughter. The subject child, who has developmental disabilities, had been placed in a facility which provided both educational and therapeutic services. The father contended that this was a permanent placement and that, pursuant to the parties' separation agreement, which was incorporated but not merged into the judgment of divorce, the placement was a “termination event” with respect to his child support obligation for that child.

Following a hearing, the Support Magistrate concluded that the facility was, in essence, a boarding school, albeit with a therapeutic component, and that, as such, it fell within one of the exceptions listed in the separation agreement. Accordingly, the Support Magistrate issued an order, inter alia, dismissing the father's modification petition. The father filed objections to so much of the order as dismissed his petition, and the Family Court denied the objections. The father appeals, and we affirm.

A separation agreement or stipulation of settlement which is incorporated but not merged into a judgment of divorce is a contract, the terms of which are binding on the parties ( see Matter of Gravlin v. Ruppert, 98 N.Y.2d 1, 5, 743 N.Y.S.2d 773, 770 N.E.2d 561; Matter of Boden v. Boden, 42 N.Y.2d 210, 212, 397 N.Y.S.2d 701, 366 N.E.2d 791; Rauso v. Rauso, 73 A.D.3d 888, 889, 902 N.Y.S.2d 573; Friedman v. Friedman, 65 A.D.3d 1081, 1082, 885 N.Y.S.2d 720; Hyland v. Hyland, 63 A.D.3d 1106, 1107, 882 N.Y.S.2d 276; Matter of Mason v. Papol, 63 A.D.3d 942, 883 N.Y.S.2d...