ZEMBENSKI v. DeMATTEO (1999)

In an action to enforce the child support escalation provision of a separation agreement between the parties, the plaintiff appeals from a judgment of the Supreme Court, Suffolk County (Costello, J.), entered March 10, 1998, which after a nonjury trial (Leis, J.), dismissed the complaint.

ORDERED that the judgment is affirmed, with costs.

The plaintiff commenced this action in 1993 to enforce the child support escalation provision of a separation agreement executed by the parties on April 19, 1977.   However, in 1983 the parties entered into a stipulation which modified the amount of the defendant's child support obligation, and did not mention the child support escalation provision contained in the April 19, 1977, agreement.   After trial, the Supreme Court found, inter alia, that the plaintiff had accepted the weekly payments as modified by the 1983 stipulation without seeking additional support, and therefore adopted the 1983 stipulation to be, in effect, a stipulation without an escalation provision.

Examining the conduct of the parties over the 10-year period from the execution of the 1983 stipulation until the commencement of the instant action in order to ascertain their intent with respect to the child support escalation provision, we find that the plaintiff's conduct belies her claim as to the applicability of that provision.   The Supreme Court, therefore, properly dismissed the complaint (cf., Slatt v. Slatt, 64 N.Y.2d 966, 488 N.Y.S.2d 645, 477 N.E.2d 1099).

MEMORANDUM BY THE COURT.