TOMMASO v. TOMMASO (2006)

In a matrimonial action in which the parties were divorced by judgment dated April 25, 2002, the plaintiff appeals, as limited by his brief, from so much of an order of the Supreme Court, Nassau County (Ross, J.), dated May 9, 2005, as denied, without a hearing, those branches of his motion which were for downward modification of his child support obligations and to cancel any arrears.

ORDERED that the order is reversed insofar as appealed from, on the law, without costs or disbursements, and the matter is remitted to the Supreme Court, Nassau County, for a hearing and new determination in accordance herewith.

The Supreme Court denied, without a hearing, those branches of the plaintiff's motion which were for a downward modification of his child support obligations as set forth in the judgment of divorce and separation agreement, which was incorporated but not merged into the judgment, and to cancel any arrears which may have accrued, on the ground that the agreement was unfair or inequitable at the time it was made.   However, there is an issue as to whether the agreement was unfair or inequitable at the time it was made.   Accordingly, a hearing should have been held (see Miller v. Miller, 18 A.D.3d 629, 796 N.Y.S.2d 97;  cf. Binette v. Binette-Acker, 23 A.D.3d 324, 806 N.Y.S.2d 73;  Matter of Davis v. Davis, 13 A.D.3d 623, 787 N.Y.S.2d 113).