Strykiewicz v. StrykiewiczStrykiewicz v. Strykiewicz
Rose, J. Appeals (1) from an order of the Supreme Court (Ferradino, J.), entered May 16, 2014 in Saratoga County, which, among other things, partially denied plaintiff‘s cross motion to modify the parties’ separation agreement, and (2) from an order of said court (Chauvin, J.), entered August 25, 2014 in Saratoga County, which denied plaintiff‘s motion for reargument.
Plaintiff and defendant, who are the parents of two children (born in 1993 and 1996), executed a separation agreement containing terms, among others, obligating defendant to make monthly child support payments in specified amounts until each child‘s 21st birthday and generally requiring both plaintiff and defendant to share in the costs of each child‘s college education. The separation agreement was thereafter incorporated, but not merged, into the parties’ 2007 judgment of divorce. Over the ensuing years, Supreme Court (Ferradino, J.) issued a series of modification orders adjusting defendant‘s child support payments. However, because the orders did not contain the termination dates of his support obligations, defendant moved to correct the most recent order to include such dates and to modify the amount of his support payments downward as of the impending date of the oldest child‘s 21st birthday.
Plaintiff then cross-moved to require defendant to contribute toward the children‘s college expenses and for counsel fees, among other things. Ultimately, Supreme Court granted defendant‘s motion, reducing his child support obligation as of
Inasmuch as defendant failed to provide statutorily required financial information in support of his request for a downward modification of the amount of his support payments as of the eldest child‘s 21st birthday, Supreme Court (Ferradino, J.) erred in granting his motion. Defendant submitted two pay stubs attached to a series of unsworn affidavits, without a statutorily required sworn statement of net worth (see
Supreme Court also incorrectly treated plaintiff‘s cross motion as one to modify the terms of the separation agreement, rather than as a motion to enforce its terms. The separation agreement simply states that plaintiff and defendant will share the children‘s college education expenses “according to [the parties‘] relative means and abilities[.]” In our view, the record supports [plaintiff‘s] assertion that, although her application was styled as a modification, it should instead be viewed as a request for enforcement. The clear language of [the agreement] reveals that the parties initially considered the [children‘s] pursuit of a college education, intended to contribute to that pursuit, and “contemplated a later determination by the court concerning the sharing of educational expenses when appropri- ate”
Finally, Supreme Court erroneously denied plaintiff‘s request for counsel fees on the basis of her failure to make an unnecessary evidentiary showing of a change in circumstances. Although plaintiff has sufficiently established the value of the legal services rendered to her, we must also remit this matter to Supreme Court for a hearing, as “[a] sufficient evidentiary basis [does not] exist for [us] to evaluate the respective financial circumstances of the parties” (Matter of Buono v Fantacone, 252 AD2d 917, 919 [1998]; see
Garry, J.P., Lynch, Devine and Clark, JJ., concur. Ordered that the order entered May 16, 2014 is modified, on the law, without costs, by reversing so much thereof as granted defendant‘s motion to modify his child support obligation and denied that part of plaintiff‘s cross motion as sought contribution from defendant for the children‘s college expenses and as denied her request for counsel fees; matter remitted to the Supreme Court for further proceedings not inconsistent with this Court‘s decision and, pending said proceedings, the terms of the child support order dated February 5, 2013 shall remain in effect on a temporary basis; and, as so modified, affirmed. Ordered that the appeal from the order entered August 25, 2014 is dismissed, without costs.