3 No. 53
In the Matter of Diana Gravlin,
Appellant,
v.
Heinz Ruppert,
Respondent.
_________________________________________________________________
2002 NY Int. 58
May 7, 2002
This opinion is uncorrected and subject to revision before publication
in the New York Reports.
Peter J. Scagnelli, for appellant.
Paul M. Whitaker, for respondent.
_________________________________________________________________
CIPARICK, J.:
This appeal calls upon us to determine whether modification of child
support provisions of a separation agreement is warranted where there
has been an unforeseen change in circumstances, resulting in a
complete failure of the support obligations contemplated in the
parties' agreement.
Petitioner-mother and respondent-father were married in January 1980
and had one child -- a daughter -- in 1984. By March 1994, the parties
separated and entered into a separation agreement. As the agreement
recited, the parties were aware of the provisions of the Child Support
Standards Act (Family Court Act § 413 (CSSA)) and their respective
rights and support obligations under it.(1) Nonetheless, they
agreed to depart from CSSA guidelines, noting that petitioner was
capable of providing basic child support without assistance from
respondent, and that the child would spend about 35% of her time with
her father during which time he would pay all her expenses. Further,
respondent would pay for the child's clothing, with petitioner
assisting with the shopping, and would fund a college trust with
$10,000 (which he apparently did). At the time of the agreement,
petitioner's adjusted gross income was approximately $38,000 per year,
respondent's approximately $23,000. The couple divorced on July 15,
1994; the separation agreement was incorporated but not merged into
the judgment of divorce.
Initially, the parties operated under the terms of the separation
SNIPPETS:
In the Matter of Diana Gravlin, Appellant, v. Heinz Ruppert, Respondent.
This appeal calls upon us to determine whether modification of child support provisions of a
As the agreement recited, the parties were aware of the provisions of the Child Support
Further, respondent would pay for the child's clothing, with petitioner assisting with the
Petitioner retained primary custody while the child visited with her father one day a week
After that, all significant visitation between respondent and his daughter came to an end, as
The court further stated that "ven if we assume that petitioner was attempting to prove an
We conclude that petitioner has made a sufficient showing to justify a modification of the
We therefore reverse the order of the Appellate Division and remit to Family Court for
The terms of a separation agreement incorporated but not merged into a judgment of divorce
However, the needs of a child must take precedence over the terms of the agreement when it
Separately, in Boden, we recognized the need for modification based on maintaining the
In Boden we held that a child support award in excess of that provided for in a separation
the Appellate Division went further and suggested that even if "the cessation of visitation
Accordingly, the order of the Appellate Division should be reversed, with costs, and the
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