Schulman v. Miller

• Decision Date: 29 December 2015
• Parties: A Steven G. SCHULMAN, Plaintiff–Appellant, v. Apryl N. MILLER, Defendant–Respondent.
• Court: New York Supreme Court — Appellate Division

134 A.D.3d 616
22 N.Y.S.3d 44

A Steven G. SCHULMAN, Plaintiff–Appellant,
v.
Apryl N. MILLER, Defendant–Respondent.

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

Dec. 29, 2015.

22 N.Y.S.3d 44

Kenneth David Burrows, New York, for appellant.

Iris Manon Darvin, New York, for respondent.

GONZALEZ, P.J., TOM, MAZZARELLI, RENWICK, MANZANET–DANIELS, JJ.

134 A.D.3d 616

Orders, Supreme Court, New York County (Lori S. Sattler, J.), entered October 22, 2014, which, to the extent appealed from as limited by the briefs, denied plaintiff's motions for a declaration that the

22 N.Y.S.3d 45

parties' older child was emancipated upon ceasing to be a full-time student at age 21, or, alternatively, that she would be emancipated on her 22nd birthday in December 2014, and a recomputation of his support obligations accordingly, and to compel financial disclosure by defendant, and granted defendant's motion to direct plaintiff to resume payment of all basic child support and add-on expenses pursuant to the parties' stipulation of settlement, and reserved decision on defendant's application for counsel fees pending her submission of an affidavit in support thereof, affirmed, without costs.

The parties' stipulation of settlement requires plaintiff to pay unallocated child support for the parties' two children in a monthly sum, plus cost of living adjustments, as well as all other expenses of each child, including education and college, provided that the child complete college within six years after graduating from high school. It does not provide for the reduction or recalculation of plaintiff's child support obligation upon the emancipation of the older child.

Notably, there are provisions in the stipulation that do provide for a termination or reduction of plaintiff's financial obligations upon the happening of specified events, including, for example, plaintiff's obligation to pay maintenance to defendant mother, his obligation to maintain medical insurance for each child, payments for car service, and the like. The provision concerning medical insurance explicitly states that plaintiff "shall have the right to terminate such coverage for either Child at the time she becomes emancipated." The parties' stipulation of settlement is an exhaustive, 62–page document. Both parties were represented by counsel during its negotiation (indeed, plaintiff himself is an experienced attorney). The inescapable conclusion is that the parties did not intend to include a similar provision concerning the termination or reduction of child support upon the emancipation of the older child.

134 A.D.3d 617

There is no evidence, other than plaintiff's testimony, that the parties had agreed to a reduction in child support on account of any purported emancipation of the older child. Indeed, their agreement, freely entered into, does not allocate plaintiff's child support obligation as between the children or provide a formula for a reduction in the event of one child's emancipation (compare Gallina v. Gallina, 162 A.D.2d 219, 220, 556 N.Y.S.2d 589 [1st Dept.1990] [stipulation expressly provided for reduction of support upon a child's emancipation] ). "When child support has been ordered for more than one child, the emancipation of the oldest child does not automatically reduce the amount of support owed under an order of support for multiple children" (Lamassa v. Lamassa, 106 A.D.3d 957, 959, 965 N.Y.S.2d 195 [2d Dept.2013] [internal quotation marks omitted] ). Plaintiff's arguments concerning the interplay of the stipulation of settlement and the judgment of divorce (into which the stipulation was incorporated by reference but not merged) are unavailing given that the stipulation specifically provides that neither party will request that "any provision inconsistent with any of the provisions of this Stipulation" be inserted into the judgment.

Plaintiff is free to make a motion for a downward modification of the unallocated support obligation upon a proper showing. We ought not, however, rewrite the agreement in order that he might achieve this end.

The stipulation sets forth events of emancipation for either child, which include, as pertinent here, reaching the age of 21 or the age of 22, if the child is enrolled full-time in an accredited college. Contrary to plaintiff's contention, the older

22 N.Y.S.3d 46

child was not emancipated at 21, when she temporarily reduced her class load and applied for transfer to another accredited college; she will be emancipated when she turns 22.

The court correctly directed plaintiff to pay the older child's summer school tuition in accordance with the terms of the stipulation.

For purposes of attorneys' fees, defendant is the prevailing party to the extent plaintiff's unilateral and willful reduction of his support payments by half necessitated her motion to compel him to resume payments pursuant to the stipulation (see Lamassa, 106 A.D.3d at 960, 965 N.Y.S.2d 195 ; Domestic Relations Law § 237[c] ).

We have considered plaintiff's remaining arguments and find them unavailing.

All concur except GONZALEZ, P.J. and TOM, J. who dissent in part in a memorandum by TOM, J. as follows:

TOM, J. (dissenting in part).

In this matrimonial action, the parties

134 A.D.3d 618

entered into a stipulation of settlement, which provided, inter alia, for distributing the parties' assets and for support of the parties' two children. The stipulation obligated plaintiff to pay for all educational expenses through college graduation and health insurance for each child until the child become emancipated. Article 9.1 of the stipulation defines six events that would result in the "emancipation" of a child, including:

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