Opinion
2012-01-17
In the Matter of Alan MOSS, appellant, v. Faye MOSS, respondent.
Alan Moss, Yorktown Heights, N.Y., appellant pro se. Faye Goldstein, formerly known as Faye Moss, Croton–on–Hudson, N.Y., respondent pro se.
Alan Moss, Yorktown Heights, N.Y., appellant pro se. Faye Goldstein, formerly known as Faye Moss, Croton–on–Hudson, N.Y., respondent pro se.
REINALDO E. RIVERA, J.P., SHERI S. ROMAN, SANDRA L. SGROI, and JEFFREY A. COHEN, JJ.
In a child support proceeding pursuant to Family Court Act article 4, the father appeals from an order of the Family Court, Westchester County (Schauer, J.), dated March 8, 2011, which denied his objections to so much of an order of the same court (Furman, S.M.), dated January 11, 2011, as dismissed his petition for modification of his child support obligation.
ORDERED that the order dated March 8, 2011, is affirmed, with costs.
The father sought to modify his support obligation with regard to the parties' younger daughter. The subject child, who has developmental disabilities, had been placed in a facility which provided both educational and therapeutic services. The father contended that this was a permanent placement and that, pursuant to the parties' separation agreement, which was incorporated but not merged into the judgment of divorce, the placement was a “termination event” with respect to his child support obligation for that child.
Following a hearing, the Support Magistrate concluded that the facility was, in essence, a boarding school, albeit with a therapeutic component, and that, as such, it fell within one of the exceptions listed in the separation agreement. Accordingly, the Support Magistrate issued an order, inter alia, dismissing the father's modification petition. The father filed objections to so much of the order as dismissed his petition, and the Family Court denied the objections. The father appeals, and we affirm.
A separation agreement or stipulation of settlement which is incorporated but not merged into a judgment of divorce is a contract, the terms of which are binding on the parties ( see Matter of Gravlin v. Ruppert, 98 N.Y.2d 1, 5, 743 N.Y.S.2d 773, 770 N.E.2d 561; Matter of Boden v. Boden, 42 N.Y.2d 210, 212, 397 N.Y.S.2d 701, 366 N.E.2d 791; Rauso v. Rauso, 73 A.D.3d 888, 889, 902 N.Y.S.2d 573; Friedman v. Friedman, 65 A.D.3d 1081, 1082, 885 N.Y.S.2d 720; Hyland v. Hyland, 63 A.D.3d 1106, 1107, 882 N.Y.S.2d 276; Matter of Mason v. Papol, 63 A.D.3d 942, 883 N.Y.S.2d 56; Micciche v. Micciche, 62 A.D.3d 673, 879 N.Y.S.2d 502; Herzfeld v. Herzfeld, 50 A.D.3d 851, 857 N.Y.S.2d 170; Clark v. Clark, 33 A.D.3d 836, 837, 827 N.Y.S.2d 159; Sherman v. Sherman, 28 A.D.3d 738, 814 N.Y.S.2d 244; Cohen–Davidson v. Davidson, 291 A.D.2d 474, 475, 740 N.Y.S.2d 68). In interpreting a marital contract, a court should construe it in such a way as to “give fair meaning to all of the language employed by the parties to reach a practical interpretation of the expressions of the parties so that their reasonable expectations will be realized” ( Hyland v. Hyland, 63 A.D.3d at 1107, 882 N.Y.S.2d 276 [citations and internal quotation marks omitted]; see Rauso v. Rauso, 73 A.D.3d at 889, 902 N.Y.S.2d 573; Herzfeld v. Herzfeld, 50 A.D.3d at 851, 857 N.Y.S.2d 170).
Here, the parties' separation agreement provided that the father's child support obligation would terminate if “[a] child ceases to permanently reside with the ... ‘custodial parent,’ ” but stated that “[r]esidence away from the Mother's home, which a child maintains in conjunction with his or her ... residence at boarding school ... shall not terminate the child support obligations established in this paragraph.” The Support Magistrate's determination that the subject facility was, in essence, a boarding school and, thus, the father had a continuing support obligation was amply supported by the record before her. Accordingly, the father did not carry his burden of demonstrating that the child had permanently ceased to reside with the mother ( see generally Kordes v. Kordes, 70 A.D.3d 782, 783, 893 N.Y.S.2d 633; Matter of Dewitt v. Giampietro, 66 A.D.3d 773, 774, 887 N.Y.S.2d 210; Henry v. Henry, 272 A.D.2d 520, 521, 708 N.Y.S.2d 443). Moreover, notwithstanding the terms of the parties' separation agreement, the Family Court would have retained the power to set the father's support obligation in the child's best interest ( see Matter of Gravlin v. Ruppert, 98 N.Y.2d at 5, 743 N.Y.S.2d 773, 770 N.E.2d 561; Matter of Commissioner of Social Servs. v. Segarra, 78 N.Y.2d 220, 223, 573 N.Y.S.2d 56, 577 N.E.2d 47; Matter of Duggan v. Duggan, 83 A.D.3d 703, 704, 923 N.Y.S.2d 114; Linda R. v. Ari Z., 71 A.D.3d 465, 466, 895 N.Y.S.2d 412; see also Matter of Dutchess County Dept. of Social Servs. v. Day, 96 N.Y.2d 149, 155, 726 N.Y.S.2d 54, 749 N.E.2d 733; Matter of Modica v. Thompson, 300 A.D.2d 662, 662–663, 755 N.Y.S.2d 86; Aregano v. Aregano, 289 A.D.2d 1081, 735 N.Y.S.2d 325). Accordingly, the Family Court properly denied the father's objections.
The father's remaining contentions are without merit ( see Matter of Gravlin v. Ruppert, 98 N.Y.2d at 5, 743 N.Y.S.2d 773, 770 N.E.2d 561; Matter of Graby v. Graby, 87 N.Y.2d 605, 607, 641 N.Y.S.2d 577, 664 N.E.2d 488; Matter of Duggan v. Duggan, 83 A.D.3d at 704, 923 N.Y.S.2d 114; Linda R. v. Ari Z., 71 A.D.3d at 466, 895 N.Y.S.2d 412; Luongo v. Luongo, 50 A.D.3d 858, 859, 856 N.Y.S.2d 636; Matter of Weymouth v. Mullin, 42 A.D.3d 681, 839 N.Y.S.2d 600; Matter of Wrighton v. Wrighton, 23 A.D.3d 669, 670, 805 N.Y.S.2d 101; Matter of Pinto v. Putnam County Support Collection Unit, 295 A.D.2d 350, 352, 743 N.Y.S.2d 521).