DECISION AND ORDER The parties are divorced and have one child in common, A.C. On October 8, 2020, the father, Anthony C. (hereinafter “Father” or “Mr. C.”), filed a modification petition against the mother, Alison C. (hereinafter “Mother” or “Ms. C.”). See Petition for Modification of an Order of Support (C., 09/10/2020), Nassau County Family Court Docket Number F-06162-20/20A. In his modification petition, Mr. C. alleges that A.C. permanently resides away from Ms. C. Id. Mr. C. seeks an order terminating his child support obligation. Id. On April 29, 2021, Ms. C. filed a motion to dismiss. See Not. of Motion (Hagney, 04/29/2021), Nassau County Family Court Docket Number F-6162-20/20A; see also Aff. in Supp. of Mot. (C., 04/27/2021), Nassau County Family Court Docket Number F-6162-20/20A. Ms. C. maintains that under New York Civil Practice Law and Rules §3211(a)(7), Mr. C. has failed to set forth a basis to terminate the parties’ child support order. She asserts that the parties’ son, A.C., is attending college in Minnesota and, pursuant to the parties’ divorce documents, living away from her home while he is in school does not constitute a permanent residence away from her. See Judgment of Divorce (Steinman, J. 11/20/2014), Nassau County Supreme Court Index Number 2012/202802; see also Stipulation of Settlement (C./C., 05/08/2014), Nassau County Supreme Court Index Number 2012/202802. Ms. C. also sought leave to apply for an award of counsel fees, arguing that Mr. C.’s petition is “frivolous” and “brought in bad faith.” Not. of Motion (Hagney, 04/29/2021), Nassau County Family Court Docket Number F-6162-20/20A; see also Aff. in Supp. of Mot., p. 4 (C., 04/27/2021), Nassau County Family Court Docket Number F-6162-20/20A. On May 25, 2021, Mr. C. filed opposition papers. See Aff. in Opp’n. (C., 05/24/2021), Nassau County Family Court Docket Number F 6162-20/20A; see also Aff. in Opp’n (Gross, 05/25/2021), Nassau County Family Court Docket Numbers F-6162-20/20A. On June 3, 2021, Ms. C. filed reply papers. See Reply Aff. (C., 06/02/201), Nassau County Family Court Docket Numbers F-6162-20/20A. On June 3, 2021, the motion was marked submit. Having considered the parties’ papers, counsel’s arguments, and the law, the Court’s determination follows: DISCUSSION MS. C.’S MOTION TO DISMISS PURSUANT TO C.P.L.R. §3211(a)(7) IS GRANTED A party to a family court action may file a motion to dismiss for failure to state a cause of action pursuant to New York Civil Practice Law and Rules (hereinafter “CPLR”) §3211(a)(7). See N.Y. C.P.L.R. §3211(a)(7) (McKinney’s 2021); see also N.Y. FAM. CT. ACT §165(a) (McKinney’s 2021) (FCA adopts and applies CPLR where FCA is silent). In its analysis, the Court must construe the petition liberally to determine whether, within the pleading’s four corners, there exists a cognizable cause of action. See Harris v. Barbera, 96 A.D.3d 904, 905 (2d Dep’t 2012); see also Martin v. Liberty Mutual Ins. Co., 92 A.D.3d 729, 730 (2d Dep’t 2012); Ruffino v. New York City Transit Auth., 55 A.D.3d 817, 818 (2d Dep’t 2008). To that end, the Court must accept all alleged facts within the pleadings to be true. See Martin, 92 A.D.3d at 730; see also Young v. Campbell, 87 A.D.3d 692, 693 (2d Dep’t 2011). In other words, a motion to dismiss for failure to state a cause of action may be granted only where, accepting the petition’s alleged facts as true, the moving papers establish conclusively that there is no claim for relief stated within the petition. See N.Y. C.P.L.R. §3221(a)(7) (McKinney’s 2021); see also Noble v. Graham, 8 A.D.3d 641, 641 (2d Dep’t 2004); Fields v. Leeponis, 95 A.D.2d 822, 822 (2d Dep’t 1983). Moreover, New York Family Court Act §451 governs the grounds for seeking to modify a support order. See N.Y. FAM. CT. ACT §451 (McKinney’s 2021). A petitioner has the burden of proving that a substantial change in circumstances has occurred. See N.Y. FAM. CT. ACT §451 (McKinney’s 2021); see also Funaro v. Kudrick, 128 A.D.3d 695, 696 (2d Dep’t 2015); see also Radday v. McLoughlin, 106 A.D.3d 1015, 1015-16 (2d Dep’t 2013); see also Kasun v. Peluo, 82 A.D.3d 769, 771 (2d Dep’t 2011); Ish-Shalom v. Wittman, 81 A.D.3d 648, 648 (2d Dep’t 2011); Aranova v. Aranova, 77 A.D.3d 740, 40 (2d Dep’t 2010). Thus, in order to decide the instant motion to dismiss, the Court must determine whether Mr. C. has sufficiently alleged that a substantial change in circumstances has occurred. The Court finds that he has not. On May 8, 2014, the parties’ executed their Stipulation of Settlement. See Stipulation of Settlement (C./C., 05/08/2014), Nassau County Supreme Court Index Number 2012/202802. The parties’ Stipulation of Settlement dictates, in pertinent part, that: “The obligation of the HUSBAND to support the CHILD shall terminate upon the first of the following to occur: a. achieving the age of twenty-one years. b. Marriage (even though such marriage may be void or voidable and despite any annulment thereof; c. Death of the CHILD, the WIFE, or the HUSBAND; d. Entry into the armed forces of the United States or the Peace Corps, however, only for the period of such enlistment or membership therein. e. The CHILD residing permanently away from the Mother, school, college, summer camp and the like shall not constitute ‘permanently living away.’” See id. at pp. 10-11. A stipulation of settlement agreement between parties is a contract. See Meccico v. Meccico, 76 N.Y.2d 822, 823-24 (1990); see also Tammone v. Tammone, 94 A.D.3d 1131, 1133 (2d Dep’t 2012); Fishbein v. Fishbein, 72 A.D.3d 1021, 1021-022 (2d Dep’t 2010). As such, a stipulation of settlement is subject to the principles of contract construction and interpretation. See Meccico, 76 N.Y.2d at 823-24; Tammone, 94 A.D.3d at 1133; Fishbein, 72 A.D.3d at 1021-022. A court must determine whether an agreement is clear and unambiguous, or whether more than one interpretation can be drawn from its language. See Blonder v. Blonder, 171 A.D.3d 1043, 1045 (2d Dep’t 2019); see also Crawley v. Crawley, 152 A.D.3d 510, 51112(2d Dep’t 2017). Where the parties’ intent is evinced through express contract terms, its plain meaning should be given effect. See Schaff v. Schaff, 172 A.D.3d 1421, 1423 (2d Dep’t 2019) (“[W]here the language of the agreement is clear and unambiguous, the court should determine the intent of the parties based on that language without resorting to extrinsic evidence.”); Fishbein, 72 A.D.3d at 1021-022 (same); see also Herzfeld v. Herzfeld, 50 A.D.3d 851, 851 (2d Dep’t 2008) (“[T]he court should arrive at a construction which will give fair meaning to all of the language employed by the parties to reach a practical interpretation of the expressions of the parties so that their reasonable expectations will be realized.”). In other words, a court may not alter the parties’ intent, or the meaning of an agreement. See D’Sa v. D’Sa, 182 A.D.3d 535, 537 (2d Dep’t 2020); Crawley, 152 A.D.3d at 511; see also Miller v. Fitzpatrick, 147 A.D.3d 845, 847 (2d Dep’t 2017). Where the writings are unambiguous, a court is not required to hold a hearing. See Schaff, 172 A.D.3d at 1423 (finding hearing unnecessary and upholding supreme court decision). In his papers, Mr. C. acknowledges that the parties’ son attends college in Minnesota. He argues that A.C. is residing permanently away from Ms. C. because A.C. lives in an apartment and has a job in Minnesota. He maintains that during the course of the last two years, A.C. has only returned to Ms. C.’s home for a period of two weeks. Mr. C.’s argument is unpersuasive. The parties’ Stipulation of Settlement clearly sets forth the bases under which Mr. C.’s child support obligation can be terminated. More specifically, such contract plainly delineates the circumstances under which A.C. is not considered to be living permanently away from Ms. C. In light of the parties’ divorce agreement, irrespective of whether A.C. lives on or off campus, while he attends college away from home, such can not be the basis to terminate Mr. C.’s child support obligation. Accordingly, Mr. C. has failed to allege a substantial change in circumstances. Mr. C.’s argument in his petition that he has retired and can not afford to pay child support as ordered is belied by his argument that he intends to continue supporting A.C. by paying all of his expenses, but wants to stop paying child support to Ms. C.1 Aff. in Opp’n, p. 3 (Gross, 05/25/2021), Nassau County Family Court Docket Number F-6162-20/20A. It is apparent, as this Court often hears from payor parents, that Mr. C. would prefer to pay child support to his son directly rather than through Ms. C. The law does not yet have a mechanism for that. The only circumstance which would permit such an arrangement would be if A.C. lived away from both of his parents and filed a petition for child support against one or both of them.2 The Court finds worthy of mention that there was no documentation attached to Mr. C.’s modification petition lending credence to any of his claims. ADJUDGED, that accepting all of the alleged facts within the pleadings to be true, Mr. C. has failed to sufficiently set forth causes of action; and it is therefore, ORDERED, that Ms. C.’s motion to dismiss under New York Civil Practice Law and Rules §3211(a)(7) is hereby granted; and it is further, ORDERED, that Mr. C.’s petition is hereby dismissed without prejudice; and it is further, ORDERED, that Ms. C. is hereby granted to leave to apply for an award of counsel fees. YOUR WILLFUL FAILURE TO OBEY THIS ORDER MAY, AFTER COURT HEARING, RESULT IN YOUR COMMITMENT TO JAIL FOR A TERM NOT TO EXCEED SIX MONTHS FOR CRIMINAL NON-SUPPORT OR CONTEMPT OF COURT; YOUR FAILURE TO OBEY THIS ORDER MAY RESULT IN SUSPENSION OF YOUR DRIVER’S LICENSES, STATE-ISSUED PROFESSIONAL, TRADE, BUSINESS AND OCCUPATIONAL LICENSES AND RECREATIONAL AND SPORTING LICENSES AND PERMITS; AND IMPOSITION OF REAL OR PERSONAL PROPERTY LIENS. PURSUANT TO SECTION 1113 OF THE FAMILY COURT ACT, AN APPEAL MUST BE TAKEN WITHIN 30 DAYS OF RECEIPT OF THE ORDER BY APPELLANT IN COURT, 35 DAYS FROM THE DATE OF MAILING OF THE ORDER TO APPELLANT BY THE CLERK OF COURT, OR 30 DAYS AFTER SERVICE BY A PARTY OR THE ATTORNEY FOR THE CHILD UPON APPELLANT, WHICHEVER IS EARLIEST. Check applicable box: Order mailed on [specify date(s) and to whom mailed]: Order received in court on [specify date(s) and to whom given]: Dated: June 7, 2021
