Elizabeth Etzel, Now Known as Elizabeth A. Hornfeck, Appellant, v Paul Etzel, Respondent.
Appellate Division of the Supreme Court of New York, Third Department
2005
803 NYS2d 219
Lahtinen, J.
The parties, who married in 1981 and divorced in 1998, are
Plaintiff refused to execute form 8332 for the tax year 1998. Defendant then filed an enforcement petition in Family Court seeking to require plaintiff to sign the form for that year and all subsequent years. While the Support Magistrate noted that plaintiff signed the form for 1998 while the petition was pending, he specifically rejected as “not valid” defendant’s argument that he was automatically entitled under the agreement to the exemption for each year until all the children were emancipated and held that such issue “should be reviewed by the parties each year and they should seek advise [sic] as to what is meant by IRS rules.” Objections to the Support Magistrate’s decision and order were filed, but that portion of the decision and order dealing with the exemption issue was not disturbed. During the ensuing years, the exemption issue reportedly continued to be a point of disagreement between the parties and, thus, in April 2004, defendant moved in Supreme Court via order to show cause for an order directing plaintiff to execute form 8332 for the tax year 2002 and all future years. Plaintiff opposed the motion and applied for, among other things, an increase in child support. Supreme Court denied plaintiffs motion, but granted defendant’s motion based on its interpretation of the terms of the oral stipulation as requiring that defendant receive the exemption for the children every year until all were emanci
We reverse that portion of Supreme Court’s order that found defendant automatically entitled to the exemption under the oral stipulation and granted defendant’s motion directing plaintiff to execute all income tax forms including IRS form 8332 so that defendant could claim the parties’ children as tax exemptions for tax year 2002 and every year thereafter. This identical issue was presented to a court of competent jurisdiction when defendant filed his enforcement petition in Family Court. Defendant had a full and fair opportunity to present his case at the trial of that issue and the matter was clearly decided adversely to defendant and no appeal was taken. That prior proceeding, which determined that defendant was not automatically entitled to the tax exemption for the children every year, precludes consideration of that issue in this proceeding (see Matter of Suffolk County Dept. of Social Servs. v James M., 83 NY2d 178, 182-183 [1994]; Schwartz v Public Adm’r of County of Bronx, 24 NY2d 65, 71 [1969]; Briarpatch Ltd., L.P. v Frankfurt Garbus Klein & Selz, P.C., 13 AD3d 296, 297 [2004], lv denied 4 NY3d 707 [2005]). Whether defendant is entitled to claim the children as tax exemptions depends upon defendant’s compliance “with the IRS rules” (see generally
Next, we address plaintiffs argument that her application to modify child support should not have been dismissed. “[A] party seeking to modify a child support order arising out of an agreement or stipulation must first establish that the stipulation was unfair when entered into or that there has been an unanticipated and unreasonable change in circumstances leading to an accompanying need” (Matter of Watrous v Watrous, 295 AD2d 664, 666 [2002]; see Matter of Ellenbogen v Ellenbogen, 6 AD3d 1026, 1027 [2004]). Plaintiffs affidavit was conclusory and unsupported by any documents or allegations indicating a relevant change in circumstances. Nor was any contention made that the stipulation was unfair regarding child support at the time the parties entered into it. In light of these infirmities in plaintiffs application, Supreme Court properly denied her motion.
Cardona, P.J., Mercure, Spain and Carpinello, JJ., concur.
Ordered that the order is modified, on the law, without costs, by reversing so much thereof as granted defendant’s motion to direct plaintiff to execute certain tax documents; motion denied; and, as so modified, affirmed.