GOLDEN v. GOLDEN (1998)

In a matrimonial action in which the parties were divorced by judgment dated December 27, 1993, the defendant appeals from so much of an order of the Supreme Court, Westchester County (Shapiro, J.), entered April 23, 1997, as denied her motion, inter alia, for upward modification of child support.

ORDERED that the order is affirmed insofar as appealed from, with costs.

The parties have three children.   In 1993, they entered into an agreement, which was not merged in the judgment of divorce, which granted custody to the defendant mother and awarded her basic child support in an amount determined annually based upon the parties' respective earned incomes for the previous tax year.   On a prior application by the plaintiff father for downward modification of child support based upon a decline in his income in the then-current tax year, the court, in an order entered July 28, 1995, refused to deviate from the terms of the agreement, noting that “Both parties, attorneys by profession, were represented by competent counsel during negotiations of a settlement agreement that appears to be fair and equitable on its face”.

On the instant application by the mother, inter alia, for upward modification of child support, she failed to establish an unreasonable and unanticipated change of circumstances and concomitant showing of need which would justify modification of child support pursuant to the agreement (see, Matter of Boden v. Boden, 42 N.Y.2d 210, 213, 397 N.Y.S.2d 701, 366 N.E.2d 791;  Matter of Schroder v. Schroder, 205 A.D.2d 986, 613 N.Y.S.2d 969).   Nor did she establish that the needs of the children were not being met (see, Matter of Brescia v. Fitts, 56 N.Y.2d 132, 140, 451 N.Y.S.2d 68, 436 N.E.2d 518).

The mother's remaining contentions are without merit (see, Hickland v. Hickland, 39 N.Y.2d 1, 5, 382 N.Y.S.2d 475, 346 N.E.2d 243, cert. denied 429 U.S. 941, 97 S.Ct. 357, 50 L.Ed.2d 310;  Matter of Davis v. Davis, 197 A.D.2d 622, 623, 602 N.Y.S.2d 672).

MEMORANDUM BY THE COURT.