Urbach v. Krouner

• Decision Date: 09 March 1995
• Citation: 213 A.D.2d 833,623 N.Y.S.2d 380
• Parties: In the Matter of Cynthia URBACH, Respondent, v. Leonard KROUNER, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 380

623 N.Y.S.2d 380

213 A.D.2d 833

In the Matter of Cynthia URBACH, Respondent, v. Leonard KROUNER, Appellant.

Supreme Court, Appellate Division,

Third Department.

March 9, 1995.

Leonard W. Krouner, in pro. per.

Sherry A. Chase, Albany, for respondent.

Before MERCURE, J.P., and CREW, CASEY, YESAWICH and SPAIN, JJ.

YESAWICH, Justice.

Appeals (1) from an order of the Family Court of Albany County (Tobin, J.), entered February 25, 1994, which, inter alia, granted petitioner's application, in a proceeding pursuant to Family Court Act article 4, for modification of respondent's support obligation, and (2) from an order of said court, entered May 20, 1994, which, in a proceeding pursuant to Family Court Act article 4, denied both parties' objections to the Hearing Examiner's findings.

By the terms of a stipulation entered into between the parties on August 6, 1986 and incorporated, but not merged, into their divorce decree dated September 19, 1986, petitioner was awarded custody of the parties' only child, Kenneth. The parties also agreed, inter alia, that respondent would pay child support of $125 per week for one year, and $175 per week thereafter; that petitioner would provide medical insurance for Kenneth and share in the cost of any orthodontic treatment deemed necessary; and that respondent would pay for all of the child's other uninsured medical expenses. In 1989, Family Court modified the stipulation by permitting respondent to provide health insurance and take a credit against his child support obligation for his contribution in this regard. ¹

Respondent was awarded custody of Kenneth on November 2, 1989, and in 1990 respondent's support obligation was terminated, retroactive to that date. On March 22, 1991 he applied for support from petitioner and, in an order dated July 25, 1991 and retroactive to the date of application (hereinafter the 1991 order), Family Court ordered petitioner to pay $25 per month, in accordance with the provisions of the Child Support Standards Act (hereinafter CSSA) (see, Family Ct Act § 413). No explicit direction was given with respect to health insurance premiums or payment of uninsured medical expenses.

In 1992, custody of Kenneth was returned to petitioner, who then applied for modification of the 1991 order on the basis of the change of custody, and asked that respondent be directed to pay child support as provided by the CSSA. Respondent cross-petitioned to obtain reimbursement for health insurance premiums he had paid on behalf of Kenneth, and for half of Kenneth's orthodontic expenses. A temporary support order was entered. After a hearing, the Hearing Examiner determined, inter alia, that the restoration of custody to petitioner warranted reinstatement of the support provisions set forth in the parties' 1986 stipulation agreement. After considering respondent's objections, Family Court found the Hearing Examiner's reversion to the terms of the stipulation to be erroneous, and remitted the matter so that respondent's child support obligation could be redetermined pursuant to the CSSA.

The Hearing Examiner issued a revised determination, and again both parties objected on various grounds. Respondent continued to insist that, because custody had been returned to petitioner--and in the absence of a showing that there had been an unreasonable or unanticipated change in circumstances, or that Kenneth's needs were not being met--the court was constrained to abide by the terms of the parties' prior agreement. Family Court rejected these arguments, and respondent appeals from the resulting order confirming the Hearing Examiner's revised disposition, as well as from the court's previous order remitting the matter for redetermination.

Respondent's reliance upon Matter of Mooers v. Mooers, 105 A.D.2d 561, 481 N.Y.S.2d 506, a case which preceded enactment of the CSSA, is misplaced, for there neither party had, at any point prior to the application being considered by the court, sought or received child support except in accordance with the very terms of their agreement. Family Court correctly found in that case that the mere change in custody was not an unanticipated and unreasonable change in circumstances and, therefore, that modification of the agreement was not warranted.

Here, however, petitioner does not seek to modify the support provisions of the agreement, but rather to modify the 1991 order, which superseded the parties' stipulation with respect to all aspects of Kenneth's support (see, Riseley v. Riseley, 208 A.D.2d 132, 134-135, 622 N.Y.S.2d 387, 388). The standards invoked in Mooers (see, Matter of Boden v. Boden, 42 N.Y.2d 210, 397 N.Y.S.2d 701, 366 N.E.2d 791; Matter of Brescia v. Fitts, 56 N.Y.2d 132, 451 N.Y.S.2d 68, 436 N.E.2d 518) are not applicable when a party requests modification of a prior court order (as opposed to a contract to which he or she has assented); all that must be shown is that there has been a...