Calendar Date: April 26, 2018Before: Garry, P.J., Egan Jr., Clark, Mulvey and Rumsey, JJ.__________Donnellan & Knussman, PLLC, Ballston Spa (Katherine L.Mastaitis of counsel), for appellant.King, Adang, Arpey, Strickland & Thompson, LLP, SaratogaSprings (Gillian A. Hirsch of counsel), for respondent.__________Egan Jr., J.Appeal from an order of the Family Court of Saratoga County(Jensen, J.), entered January 5, 2017, which dismissedpetitioner’s application, in a proceeding pursuant to Family CtAct article 4, to modify a prior support obligation.Petitioner (hereinafter the father) and respondent(hereinafter the mother) are the divorced parents of two children(born in 2000 and 2004). In February 2015, the mother commencedan action for divorce. In July 2015, during the pendency of thataction, the parties entered into a postnuptial agreementproviding that, in the event that a divorce was subsequentlygranted or certain other provisions of the subject agreement weretriggered, the parties would, among other things, have jointlegal and shared physical custody of the children and neither-2- 525744party would be responsible to pay child support to the other solong as each party abided by the custody and access schedule setforth in the agreement.1 In May 2016, the parties appearedbefore Supreme Court and entered into an oral stipulation in thedivorce action wherein they agreed to share joint legal custodyof the children, with the father having primary physical custodyand specified parenting time to the mother. The parties’ furtherstipulated that the remaining provisions of their divorceagreement would be dictated by the terms set forth in their July2015 postnuptial agreement. On July 25, 2016, Supreme Courtsigned a judgment of divorce incorporating, but not merging, theJuly 2015 postnuptial agreement and the May 2016 stipulation.Two weeks after the judgment of divorce was entered, thefather filed the instant modification petition seeking to obtainchild support from the mother, alleging, among other things, thata change in circumstances had occurred since entry of thejudgment of divorce based upon the fact that the parties’ May2016 stipulation granting him primary physical custody of thechildren served to effectively void the child support waiver setforth in the July 2015 postnuptial agreement.2 The motherthereafter moved to dismiss the father’s modification petitionand, in November 2016, a Support Magistrate dismissed thepetition on the ground that the father had failed to set forth achange in circumstances since entry of the judgment of divorce.The father filed objections to the Support Magistrate’s orderand, in January 2017, Family Court dismissed the objections. Thefather now appeals.As relevant here, “a party seeking modification of a childsupport provision derived from an agreement or stipulationincorporated but not merged into a divorce decree has the burdenof proving that the agreement was unfair or inequitable whenentered into or that an unanticipated and unreasonable change ofcircumstances has occurred resulting in a concomitant increasedneed or that the needs of the children are not being adequatelymet” (Malone v Malone, 122 AD3d 1190, 1192 [2014] [internalquotation marks, brackets and citations omitted]; see Matter ofBoden v Boden, 42 NY2d 210, 213 [1977]; Matter of Frederick-Kanev Potter, 155 AD3d 1327, 1329 [2017]; Matter of Overbaugh vSchettini, 103 AD3d 972, 973 [2013], lv denied 21 NY3d 854[2013]). Here, other than the father’s conclusory assertion,there are no allegations of fact, let alone proof, contained inhis modification petition to support a claim that the parties’May 2016 stipulation awarding him primary physical custody of thechildren served to void the child support waiver contained in theparties’ July 2015 postnuptial agreement. There is no languagecontained in the postnuptial agreement that provides for theautomatic nullification of such a waiver in the event that theparties subsequently agreed to a change in custody. Nor is thereany allegation that the mother otherwise violated the terms ofthe parties’ custody and access agreement as set forth in theirpostnuptial agreement.3Further, the father and the mother were both represented bycounsel at all relevant times during the pendency of thematrimonial action. At the parties’ May 2016 appearance beforeSupreme Court, the father neither rendered an objection to theongoing applicability of the parties’ child support waiver norsought an amendment to the parties’ July 2015 postnuptialagreement in light of the parties’ subsequent May 2016stipulation that he was to obtain primary physical custody of thechildren. Nor is there anything in the record demonstrating thatthe children’s needs are not presently being met. Thus, thefather’s modification petition failed to provide any allegationsof fact indicating that the postnuptial agreement and stipulationincorporated into the judgment of divorce were unfair orunconscionable at the time that they were entered into or thatthere was otherwise an unanticipated and unreasonable change incircumstances since entry of the judgment of divorce entitlinghim to the relief sought (see Matter of Overbaugh v Schettini,103 AD3d at 974; Matter of Zibell v Zibell, 112 AD3d 1101, 1102[2013]; Matter of Hunt v Bartley, 85 AD3d 1275, 1277 [2011]).Accordingly, we discern no error in Family Court’s dismissal ofthe father’s modification petition.Garry, P.J., Clark, Mulvey and Rumsey, JJ., concur.ORDERED that the order is affirmed, without costs.ENTER:Robert D. MaybergerClerk of the Court
