Patten v. Patten

• Decision Date: 18 April 1994
• Parties: Judith Reardon PATTEN, Appellant, v. William P. PATTEN, Respondent.
• Court: New York Supreme Court — Appellate Division

Page 575

610 N.Y.S.2d 575

203 A.D.2d 441

Judith Reardon PATTEN, Appellant, v. William P. PATTEN, Respondent.

Supreme Court, Appellate Division Second Department.

April 18, 1994.

William E. Bandon, P.C., Katonah, for appellant.

Reilly & Lewis, White Plains (Gerald D. Reilly, of counsel), for respondent.

Before THOMPSON, J.P., and COPERTINO, PIZZUTO and SANTUCCI, JJ.

MEMORANDUM BY THE COURT.

In a matrimonial action, the plaintiff wife appeals, as limited by her brief, from so much of an order of the Supreme Court, Westchester County (Nastasi, J.), entered June 12, 1992, as (1) granted the defendant husband's motion for the enforcement of child support provisions of a judgment of divorce of the same court, entered February 15, 1989, which incorporated the terms of a stipulation of settlement, and (2) denied the plaintiff's cross motion for upward modification of child support.

ORDERED that the order is affirmed insofar as appealed from, with costs.

On December 15, 1988, the parties entered into a stipulation whereby, inter alia, the defendant father agreed to pay child support of $50 per week for each of his two children. This obligation, however, was subject to several provisions relating to the anticipated payment of Social Security disability benefits to the children as a result of the defendant's disability. The stipulation provided that the plaintiff mother would accept these Social Security disability benefits on behalf of the children in lieu of the defendant's child support payments, and that the defendant would be responsible for any deficit, i.e., if the benefits amounted to less than $5,200 per year. The agreement further provided that if the plaintiff received a lump sum payment for retroactive benefits on behalf of the children, she was to reimburse the defendant for the child support payments made by him for the period subsumed by the retroactive payment. The parties were divorced by a judgment of the Supreme Court, Westchester County, entered February 15, 1989, and the stipulation was incorporated, but not merged, into the judgment.

The Social Security Administration (hereinafter the SSA) thereafter approved the application for benefits on behalf of the children. In October of 1991, the SSA remitted a lump sum check to the plaintiff, as representative payee, of $14,200 to cover "past benefits due", and has, since December of 1991, made monthly payments for the children totalling $532 per month.

The defendant moved for enforcement of the stipulation after repeated requests to the plaintiff for compliance proved fruitless. The plaintiff countered that the provisions in question were illegal and, accordingly, unenforceable. In addition, the plaintiff cross-moved for an upward modification of child support. The Supreme Court granted the defendant's request for enforcement of the child support provisions relating to the Social Security payments, rejected the plaintiff's claim of illegality, and concluded that the parties' unequivocal stipulation should govern. The court further denied the plaintiff's cross motion for additional support. We affirm.

The principle that Social Security disability payments received by a child by virtue of the child's parent's disability may be credited toward the disabled parent's child support obligation was expressed by this court in Passaro v. Passaro, 92 A.D.2d 861, 863, 459 N.Y.S.2d 839).

More recently, in Matter of Graby v. Graby, 196 A.D.2d...