By Leventhal, J.P.; Maltese, Duffy, Christopher, JJ. IN THE MATTER OF JOSEPH CAMARDA, app, v. MARIE L. CHARLOT, res — (Index No. F-08229-09) Joseph Camarda, Belle Terre, NY, appellant pro se. In a proceeding pursuant to Family Court Act article 4, the father appeals from (1) an order of the Family Court, Suffolk County (Darlene Jorif-Mangane, S.M.), dated July 28, 2018, and (2) an order of the same court (David Morris, J.) dated September 7, 2018. The order dated July 28, 2018, granted, without a hearing, the mother’s motion to dismiss the father’s petition for a downward modification of his child support obligation and for an award of an attorney’s fee in the amount of $2,250. The order dated September 7, 2018, denied the father’s objections to the order dated July 28, 2018. ORDERED that the appeal from the order dated July 28, 2018, is dismissed, without costs or disbursements, as that order was superseded by the order dated September 7, 2018; and it is further; ORDERED that the order dated September 7, 2018, is modified, on the law, by deleting the provision thereof denying the father’s objection to so much of the order dated July 28, 2018, as granted that branch of the mother’s motion which was for an award of an attorney’s fee in the amount of $2,250, and substituting therefor a provision granting that objection to the extent of vacating that portion of the order dated July 28, 2018; as so modified, the order dated September 7, 2018, is affirmed, without costs or disbursements, and the matter is remitted to the Family Court, Suffolk County, for a hearing to address the appropriateness of an award of an attorney’s fee to the mother and the amount, if any, to be awarded, and a new determination thereafter of that branch of the mother’s motion. The parties have one child together. Pursuant to a 2009 order of child support, the father is obligated to pay child support to the mother through the support collection unit. In February 2015, the father petitioned for a downward modification of his child support obligation. In an order dated December 8, 2015, after a hearing, a Support Magistrate dismissed the father’s petition upon concluding that he had not established a substantial change in circumstances to warrant a downward modification of his child support obligation. In May 2018, the father filed the petition at issue here, again seeking a downward modification of his child support obligation on essentially the same grounds that he had asserted in 2015. The mother moved to dismiss the petition and for an award of an attorney’s fee in the amount of $2,250. The parties attended a court proceeding on July 12, 2018 (hereinafter the July 2018 proceeding), wherein the Support Magistrate indicated on the record that the father’s petition would be dismissed. At the end of the July 2018 proceeding, after the Support Magistrate orally dismissed the petition, the attorney for the mother asked about that branch of her motion which was for an award of an attorney’s fee. Without affording the father an opportunity to be heard on that branch of the motion, the Support Magistrate indicated that it would be addressed in the order and the parties were then directed to exit the courtroom. In an order dated July 28, 2018 (hereinafter the July 2018 order), the Support Magistrate granted the mother’s motion to dismiss the father’s petition and for an award of an attorney’s fee in the amount of $2,250. In an order dated September 7, 2018, the Family Court denied the father’s objections to the dismissal of his petition and the award of an attorney’s fee to the mother in the amount of $2,250 as set forth in the July 2018 order. “Upon an application to set aside or vacate an order of support, no hearing shall be required unless such application shall be supported by affidavit and other evidentiary material sufficient to establish a prima facie case for the relief requested” (Family Ct Act §451[1]; see Matter of Figueroa v. Herring, 61 AD3d 976, 977; D’Alesio v. D’Alesio, 300 AD2d 340, 341). “The party seeking modification of a support order has the burden of establishing the existence of a substantial change in circumstances warranting the modification” (Matter of Nieves-Ford v. Gordon, 47 AD3d 936, 936; see Matter of Marrale v. Marrale, 44 AD3d 773, 775). Here, the father failed to make a prima facie showing that “a substantial change in circumstances” had occurred subsequent to the determination of his 2015 petition for a downward modification (Family Ct Act §451[3][a]; see Matter of Bono v. Pitre, 97 AD3d 743, 743). He was precluded from relitigating the same facts he had raised in 2015 in his subsequent petition (see Matter of Solis v. Marmolejos, 50 AD3d 691, 692; Matter of Lacome v. Marius, 4 AD3d 430, 430). Thus, we agree with the Family Court’s determination denying the father’s objection to so much of the July 2018 order as granted that branch of the mother’s motion which was to dismiss his petition. However, the Family Court should have granted the father’s objection to so much of the July 2018 order as granted that branch of the mother’s motion which was for an award of an attorney’s fee in the amount of $2,250 to the extent of directing a hearing as to the appropriateness of the award and the amount of the fees (see Santora v. Nicolini, 237 AD2d 504, 506). Although an award of reasonable counsel fees is a matter within the sound discretion of the trial court (see Matter of Grald v. Grald, 33 AD3d 922, 923; see also Matter of Westergaard v. Westergaard, 106 AD3d 926, 926), under the circumstances presented here, the father had no opportunity at the proceeding to challenge the appropriateness of the award or the amount sought by the mother (see Santora v. Nicolini, 237 AD2d at 506). Accordingly, the father’s objection to the award of an attorney’s fee to the mother in the amount of $2,250 is granted to the extent of remitting the matter for a hearing on the appropriateness of the award and the amount, if any, of attorney’s fees to be awarded (see id.), and a new determination thereafter of that branch of the mother’s motion. The father’s remaining contentions are not properly before this Court as they were not raised in his objections to the July 2018 order (see Matter of Feng Lucy Luo v. Yang, 89 AD3d 946, 947; Matter of Corr v. Corr, 3 AD3d 567, 567). LEVENTHAL, J.P., MALTESE, DUFFY and CHRISTOPHER, JJ., concur.
By Mastro, J.P.; Dillon, Christopher, Wooten, JJ. IN THE MATTER OF LOEFFLER D’SA, app, v. DAWN BIPAT D’SA, res — (Index No. F-1497-17/18E) Michael J. Reilly, Garden City, NY, for appellant. In a proceeding pursuant to Family Court Act article 4, the father appeals from an order of the Family Court, Suffolk County (Paul M. Hensley, J.), dated March 8, 2019. The order, insofar as appealed from, denied the father’s objections to so much of an order of the same court (Aletha V. Fields, S.M.), dated December 11, 2018, as, after a hearing, denied his petition, in effect, to enforce certain provisions of the parties’ stipulation of settlement, which was incorporated but not merged into a judgment of divorce entered July 1, 2016. ORDERED that the order dated March 8, 2019, is reversed insofar as appealed from, on the law, without costs or disbursements, the father’s objections are granted, the order dated December 11, 2018, is vacated, the petition is reinstated, and the matter is remitted to the Family Court, Suffolk County, for a new hearing and a new determination of the petition thereafter in accordance herewith. The parties are divorced and have two children together. The parties entered into a stipulation of settlement, which was incorporated but not merged into their judgment of divorce, whereby they agreed, inter alia, that the father’s gross income was approximately $90,000 per year and that the father would pay $1,000 per month in child support until January 2018. The stipulation of settlement further provided, “Effective January 22, 2018 until the emancipation of both children, the [father's] child support payments shall be pursuant to the Child Support Standards Act with appropriate calculations for maintenance and reflective of the income ranges of the parties.” In addition, the stipulation of settlement provided, in article 15(I), that “The parties to this Agreement have been advised by their respective attorneys of the New York Domestic Relations Law, 236(B)(9)(b) and the Family Court Act 461(b), effective October 12, 2010, providing for the modification of an Order of Child Support…and that a reduction in income shall not be considered as a ground for modification unless it was involuntary and the party has made diligent attempts to secure employment commensurate with his or her education, ability, and experience.” On September 21, 2016, the parties appeared in court and agreed, inter alia, that the father would pay child support to the mother no later than the 20th day of each month. In October 2018, the father filed a petition alleging that, pursuant to the stipulation of settlement and the judgment of divorce, the parties agreed that the father’s child support obligation would be recalculated as of January 1, 2018. The petition further alleged that there had been a substantial change of circumstances, and that the father’s income had decreased by 15 percent. After a hearing, the Support Magistrate found, inter alia, that the parties had agreed in the stipulation of settlement that a reduction in income shall not be considered as a ground for modification of child support obligations unless it was involuntary, and further found that the father had not proven that his alleged reduction in income was involuntary. The Support Magistrate, inter alia, based her calculation of the father’s child support obligation upon a gross income of $90,000 per year, directed the father to pay $1,208 per month in child support retroactive to January 18, 2018, and directed the father to pay $1,593 per month in child support commencing on December 20, 2018. The father filed written objections, arguing, inter alia, that the Support Magistrate erred in interpreting article 15(I) of the stipulation of settlement and by increasing his child support obligation. In the order appealed from, the Family Court denied the father’s objections. In its decision on objections, upon which the order appealed from was based, the Family Court found, inter alia, that the parties had agreed in the stipulation of settlement that the father’s child support obligation was zero pending the re-calculation of his child support obligations, and therefore, the father’s petition for downward modification of child support did not state a claim upon which relief could be granted. The father appeals. We disagree with the Family Court’s determination that the father’s petition did not state a claim upon which relief could be granted. Affording the father the benefit of every favorable inference (see Matter of Walton v. New York State Dept. of Correctional Servs., 13 NY3d 475, 484; Leon v. Martinez, 84 NY2d 83, 87-88; Matter of Smith v. Howard, 113 AD3d 781, 781), the petition sought to enforce the provisions of the parties’ judgment of divorce, which were based upon their stipulation of settlement. Further, contrary to the Family Court’s holding, the father’s child support obligation under the stipulation of settlement was not zero pending the recalculation. Instead, the father’s child support obligation, effective January 20, 2018, was the amount determined by the Child Support Standards Act. “A stipulation of settlement which is incorporated but not merged into a judgment of divorce is a contract subject to principles of contract construction and interpretation” (Matter of Blonder v. Blonder, 171 AD3d 1043, 1045 [internal quotation marks omitted]; Rosenberger v. Rosenberger, 63 AD3d 898, 899). “‘A court may not write into a contract conditions the parties did not insert…and it may not construe the language in such a way as would distort the…apparent meaning’” (Matter of Crawley v. Crawley, 152 AD3d 510, 511, quoting Matter of Miller v. Fitzpatrick, 147 AD3d 845, 847). Here, the parties agreed that the father’s child support obligation would be recalculated effective as of the January 20, 2018, payment. Contrary to the Support Magistrate’s determination, the parties did not agree in article 15(I) of their stipulation of settlement that any reduction in income would not be considered as a ground for modification unless it was involuntary and the party had made diligent attempts to secure employment commensurate with his or her education, ability, and experience. Instead, a plain reading of article 15(I) indicates that the parties simply acknowledged that their attorneys advised them of the law. The Support Magistrate should not have relied upon this language as a basis to deny recalculating the father’s child support obligations pursuant to the parties’ agreement (see Matter of Noah v. Feld, 128 AD3d 1071, 1072; Heller v. Heller, 43 AD3d 999, 1000-1001). Accordingly, the matter must be remitted to the Family Court for a new hearing and a new determination thereafter of the father’s modification petition. We need not reach the merits of the father’s other objections to the Support Magistrate’s findings of fact in light of our determination. MASTRO, J.P., DILLON, CHRISTOPHER and WOOTEN, JJ., concur.
