Santora v. Nicolini
| Decision Date | 24 March 1997 |
| Citation | 656 N.Y.S.2d 887,237 A.D.2d 504 |
| Parties | Donna SANTORA, f/k/a Donna Nicolini, Respondent, v. Joseph NICOLINI, Appellant. |
| Court | New York Supreme Court — Appellate Division |
Kenealy and LaGrega, Massapequa (Valerie J. Sherman, of counsel), for appellant.
In a matrimonial action in which the parties were divorced by a judgment dated February 26, 1992, the defendant former husband appeals from so much of an order of the Supreme Court, Nassau County (O'Connell, J.), entered January 12, 1996, as granted those branches of the former wife's motion as sought (a) child support arrears in the principal sum of $7,200.11, (b) arrears of equitable distribution in the principal sum of $19,460, to be paid out of an escrow account created from the proceeds of the sale of the marital residence, (c) attorney's fees in the principal sum of $5,000, and (d) one-half of his IRA account, and denied that branch of his cross motion which was for downward modification of child support.
ORDERED that the order is modified, on the law, by deleting the provisions thereof awarding the plaintiff child support arrears in the principal sum of $7,200.11, arrears of equitable distribution in the principal sum of $19,460, attorney's fees in the principal sum of $5,000, and denying a downward modification of his child support obligation; as so modified, the order is affirmed insofar as appealed from, without costs or disbursements, and the matter is remitted to the Supreme Court, Nassau County, for further proceedings in accordance herewith.
A child support obligation based, as here, upon a settlement agreement which was incorporated but not merged into a judgment of divorce may be modified where there is a substantial, unanticipated, and unreasonable change in circumstances since the judgment (see, Boden v. Boden, 42 N.Y.2d 210, 212-213, 397 N.Y.S.2d 701, 366 N.E.2d 791; Beck v. Beck, 228 A.D.2d 672, 645 N.Y.S.2d 821; Ruggerio v. Ruggerio, 173 A.D.2d 595, 597, 570 N.Y.S.2d 177). Here, the husband's submissions before the trial court were sufficient to warrant a hearing as to whether such changes occurred. Further, his submissions were sufficient to warrant a hearing as to the amount of arrears owed for child support. As against such arrears, the husband is entitled, inter alia, to an offset for a tax refund due him that was admittedly received by the wife and applied toward such arrears.
The husband admittedly failed to fulfill his obligation under...
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