Rich v. Rich

• Decision Date: 09 December 1996
• Citation: 234 A.D.2d 354,651 N.Y.S.2d 107
• Parties: Nancy W. RICH, Appellant, v. Douglas S. RICH, Respondent.
• Court: New York Supreme Court — Appellate Division

Page 107

651 N.Y.S.2d 107

234 A.D.2d 354

Nancy W. RICH, Appellant, v. Douglas S. RICH, Respondent.

Supreme Court, Appellate Division,

Second Department.

Dec. 9, 1996.

Grant & Landau, White Plains, (Harvey G. Landau, of counsel), for appellant.

Morgenthau, Greenes, Goldfarb & Aronauer, P.C., New York City, (Joseph Aronauer, of counsel), for respondent.

Before MILLER, J.P., and RITTER, THOMPSON and COPERTINO, JJ.

MEMORANDUM BY THE COURT.

In a matrimonial action in which the parties were divorced by judgment entered October 20, 1988, the plaintiff former wife appeals from an order of the Supreme Court, Westchester County (Donovan, J.), dated January 12, 1996, which, after a hearing, denied her motion, inter alia, for an upward modification of child support. Justice Thompson has been substituted for the late Justice Hart (22 NYCRR 670.1[c] ).

ORDERED that the order is affirmed, with costs.

A child support agreement arrived at pursuant to a stipulation of settlement or a separation agreement, which is incorporated but not merged into the divorce decree, should not be disturbed absent a showing that the agreement was unfair or inequitable at the time that it was made, that an "unanticipated and unreasonable change in circumstances has occurred resulting in a concomitant need" (see, Merl v. Merl, 67 N.Y.2d 359, 362, 502 N.Y.S.2d 712, 493 N.E.2d 936; Matter of Boden v. Boden, 42 N.Y.2d 210, 213, 397 N.Y.S.2d 701, 366 N.E.2d 791; Norman B. v. Joette B., 229 A.D.2d 412, 644 N.Y.S.2d 807), or that the child's right to receive adequate support is not being met (see, Norman B. v. Joette B., supra; Matter of Brescia v. Fitts, 56 N.Y.2d 132, 139-140, 451 N.Y.S.2d 68, 436 N.E.2d 518; Patten v. Patten, 203 A.D.2d 441, 443, 610 N.Y.S.2d 575; Belkin v. Belkin, 193 A.D.2d 573, 574, 597 N.Y.S.2d 421). The parties do not dispute that the stipulation was fair and equitable when entered into. In seeking increased child support from the former husband, the former wife was essentially asserting her own interest in having the former husband contribute more to the children's needs than is provided for in the parties' stipulation. In order to satisfy her burden, therefore, the former wife was required to demonstrate that the increased costs were an unanticipated and unreasonable change in circumstances (see, Matter of Brescia v. Fitts, supra, at 139, 451 N.Y.S.2d 68, 436 N.E.2d 518). The stipulation clearly indicated that maintenance would end in September of 1995, therefore the former wife had seven years notice of this eventuality, such that it cannot be deemed an unanticipated change in circumstances.

To the extent that the former wife contends that the children's needs will not be adequately met upon the cessation of maintenance, her general claims that the children's needs have increased due to inflation and the fact that they are now teenagers are insufficient to warrant an upward modification of child support (see, Matter of Bouille v. Bouille, 192 A.D.2d 802, 803, 596 N.Y.S.2d 524; Katz v. Katz, 188 A.D.2d 827, 828, 590 N.Y.S.2d 937; Caristo v. Caristo...