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Supreme Court, Appellate Division, Second Department, New York.

IN RE: Gail BEICHMAN-SAUL, respondent, v. David A. LOGLISCI, appellant.

Decided: May 29, 2007

REINALDO E. RIVERA, J.P., GLORIA GOLDSTEIN, MARK C. DILLON, and EDWARD D. CARNI, JJ. David A. Loglisci, Kings Park, N.Y., appellant pro se. Law Office of Kenneth M. Mollins, P.C., Melville, N.Y. (Richard D. Saul of counsel), for respondent.

In a support proceeding pursuant to Family Court Act article 4, the father appeals from an order of the Family Court, Suffolk County (Simeone, J.), dated August 8, 2006, which denied his objections to an order of the same court (Livrieri, S.M.), dated May 15, 2006, which, after a hearing, inter alia, granted the mother's petition and directed him to pay arrears to the mother in the sum of $829.50, representing 50% of the costs of child care for the parties' child.

ORDERED that the order dated August 8, 2006, is reversed, on the law, with costs, the father's objections to the order dated May 15, 2006, are sustained, the order dated May 15, 2006, is vacated, and the petition is denied.

Under the terms of a stipulation of settlement entered into between the parties, which was incorporated but not merged into their judgment of divorce, they were obligated to “equally share the cost of child care and ․ mutually agree upon the selection of the child care provider or program for the child.”   Here, the evidence established that the parties did not “mutually agree” upon a child care provider and thus, the father's obligation to “equally share” in the cost of the provider never arose (see Frydman v. Frydman, 32 A.D.3d 455, 456-457, 821 N.Y.S.2d 221;  Dierna v. Dierna, 11 A.D.3d 426, 782 N.Y.S.2d 784;  Pollack v. Pollack, 276 A.D.2d 613, 614, 714 N.Y.S.2d 898;  Matter of Citera v. D'Amico, 251 A.D.2d 662, 663, 676 N.Y.S.2d 602;  Matter of Levenson v. Levenson, 166 A.D.2d 592, 560 N.Y.S.2d 877).   The father's objections to the child care providers selected by the mother were reasonable (see Balk v. Rosoff, 280 A.D.2d 568, 569, 720 N.Y.S.2d 559;  cf. Matter of Susan A. v. Louis C., 32 A.D.3d 682, 683, 821 N.Y.S.2d 687;  Cohn v. Cohn, 102 A.D.2d 859, 860, 477 N.Y.S.2d 48).   Accordingly, the Family Court should have sustained the father's objections to the Support Magistrate's order, and denied the mother's petition.

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