Opinion
February 4, 1999
Appeal from the Family Court of Albany County (Tobin, J.).
Petitioner and respondent entered into, a separation agreement dated August 6, 1990, which was incorporated but not merged in their subsequent judgment of divorce. At the time the agreement was executed, both parties earned approximately $19,000 per year, and the agreement provided that respondent would pay $112 per week toward the support of the parties' three daughters, then ages 7, 4 and 2. Within three months of the execution of the agreement, respondent obtained new employment at an annual salary of $43,612. When the judgment of divorce was entered in March 1991, petitioner was unaware of respondent's change in employment and income which, according to his 1991 tax return, totaled $46,000.
Under the judgment of divorce, respondent was ordered to pay $115. weekly, a discrepancy from the separation agreement that the parties agree was intentional;
For six years following the parties' separation and divorce, petitioner and the three girls resided in a two-bedroom apartment. Petitioner slept on a couch, while her daughters shared the two bedrooms. In May 1997, she purchased a four-bedroom house for $90,000, using $15,000 borrowed from her parents. The same month, she commenced the instant proceeding seeking an upward modification of the support provisions of the divorce judgment, asserting changes of circumstances in the form of increased unmet needs of the children and the substantial increase in respondent's income. At the ensuing hearing, it was determined that respondent's income for the preceding year was $58,706 (plus a $2,425 tax refund), while petitioner's income had been $28,525. Respondent was remarried, with a new son, and had purchased a $125,000 home. Petitioner testified to a detailed list of increased expenses resulting from the ages of the children, then ages 13, 10 and 8, including camp, swimming and music lessons, religious education, social events, clothing, dry cleaning and unreimbursed medical expenses. As a result of her purchase of the home, petitioner's monthly shelter expense increased by approximately $480. She also testified that although her oldest daughter qualified to attend a summer camp for academically gifted children at Johns Hopkins University, she was unable to afford its cost. Family Court adopted the Hearing Officer's findings that petitioner had established that her current income, together with child support as provided in the parties' agreement, was inadequate to meet the children's needs for appropriate shelter and the education of the oldest daughter. The court also found that petitioner's home purchase did not represent an attempt to enhance her standard of living but rather was a necessary effort to accommodate the needs of three growing daughters. Concluding that petitioner had met the requisite standard, Family Court granted her request for an upward modification and, after determining that application of the statutory child support guidelines was appropriate, ordered respondent's pro rata share of support fixed at $301 per week. Respondent appeals.
Modification of the child support provisions in an agreement which survives a judgment of divorce may be ordered upon a showing of changed circumstances establishing that the needs of the children are not being adequately met ( see, Matter of Brescia v. Fitts, 56 N.Y.2d 132, 138-139; see also, Rich v. Rich, 234 A.D.2d 354; Matter of Neil v. Neil, 232 A.D.2d 771; Matter of Cook v. Bornholst, 230 A.D.2d 934; Matter of Litchfield v. Litchfield, 195 A.D.2d 747). Among the factors to be considered in such an application are "the circumstances as they existed at the time of the prior award and at the time the application is made * * * the increased needs of the children due to special circumstances or to the additional activities of growing children * * * the increased cost of living insofar as it results in greater expenses for the children * * * a loss of income or sets by a parent or a substantial improvement in the financial condition of a parent * * * and the current and prior life-styles of the children" ( Matter of Brescia v. Fitts, supra, at 141). Contrary to respondent's arguments, petitioner was not required to establish an "unanticipated and unreasonable change in circumstances" ( Matter of Boden v. Boden, 42 N.Y.2d 210, 213), as that standard applies "only when the dispute is directed solely to readjusting the respective obligations of the parents to support their child[ren]" ( Matter of Brescia v. Fitts, supra, at 139 [emphasis supplied]).
Applying these principles herein, we are satisfied that Family Court properly found that petitioner sufficiently demonstrated the current inadequacy of the child support provided in the separation agreement. Accordingly, we do not reach the propriety of Family Court's further conclusion that the agreement's provisions may independently be disregarded as unfair and unconscionable at the time they were incorporated into the judgment of divorce.
Finally, we find no error or injustice in Family Court's application of the Child Support Standards Act guidelines to determine respondent's support contribution even though the parties' combined annual income exceeded $80,000 (by $559). The record clearly demonstrates that the court considered the factors set forth in Family Court Act § 413 Fam. Ct. Act (1) (f) as related: to each party's circumstances and found that application of the statutory formula was neither unjust nor inappropriate ( see, Matter of Cassano v. Cassano, 85 N.Y.2d 649, 655). Specifically, the court found that respondent's income exceeded petitioner's by $30,000, that he made no significant nonmonetary contributions to his daughters' support, that he has regularly allocated 9% of his income ($5,300 annually) to a voluntary savings plan and that no evidence supported his claim that the resources available to support his new son were less than those available to support his daughters.
Crew III, Peters, Spain and Graffeo, JJ., concur.
Ordered that the order is affirmed, without costs.