SHAPIRO v. SANDERS (2008)

Order, Supreme Court, New York County (Edward H. Lehner, J.), entered April 3, 2007, which denied petitioner's application to vacate an arbitration award awarding respondent a downward modification of child support and denying petitioner's claims for child support arrears and an upward modification of child support, unanimously affirmed, without costs.

Under the parties' 1996 separation agreement incorporated but not merged into their 1996 judgment of divorce, petitioner was awarded custody of both the parties' son and daughter.   For reasons not presently in issue, respondent was given temporary custody of the son in 1999.   Respondent continued to pay the child support directed in the judgment until March 2004, when, three months after having been awarded permanent custody of the son, he sought a downward modification based on the son's change of custody.   Petitioner moved for an upward modification based on an alleged increase in respondent's earnings.   Pursuant to an arbitration clause in the separation agreement, the parties were directed to arbitration (25 A.D.3d 526, 811 N.Y.S.2d 1 [2006], lv. denied 6 N.Y.3d 711, 814 N.Y.S.2d 600, 847 N.E.2d 1173 [2006] ), where petitioner also sought post-March 2004 arrears.   The arbitrator found that the parties' incomes are nearly equal and ruled that neither should be required to pay the other child support for the child in the other's custody.   Petitioner fails to show that award does not comply with the Child Support Standards Act (Domestic Relations Law § 240[1-b] ) or is otherwise not in the best interests of the children (see Frieden v. Frieden, 22 A.D.3d 634, 802 N.Y.S.2d 727 [2005], lv. denied 6 N.Y.3d 712, 816 N.Y.S.2d 748, 849 N.E.2d 971 [2006] ).   We have considered petitioner's other arguments and find them unavailing.