         SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department
1251
CA 11-00830
PRESENT: CENTRA, J.P., FAHEY, PERADOTTO, LINDLEY, AND MARTOCHE, JJ.


GREGORY MEE, PLAINTIFF-RESPONDENT,

                    V                             MEMORANDUM AND ORDER

CHELSEA L. STRADER, DEFENDANT-APPELLANT.


MICHAEL D. SCHMITT, ROCHESTER, FOR DEFENDANT-APPELLANT.


     Appeal from an order of the Supreme Court, Monroe County (John J.
Ark, J.), entered June 30, 2010. The order, among other things,
determined that defendant failed to comply with the parties’
Separation of Custody and Support Agreement.

     It is hereby ORDERED that the order so appealed from is
unanimously affirmed with costs.

     Memorandum: Defendant appeals from an order that determined
following a nonjury trial that, inter alia, she “refused” to comply
with a specified provision of the parties’ Separation of Custody and
Support Agreement (Agreement). According to the terms of that
provision, i.e., article 26 of the Agreement, every year the parties
would compare tax returns and the party who would gain the largest
benefit from claiming the parties’ child as an exemption on his or her
tax returns would be entitled to claim the child as an exemption. The
Agreement further provided that the party claiming the child as an
exemption would pay to the other party an amount equal to 50% of the
tax benefits arising therefrom. Contrary to defendant’s contention,
that provision of the Agreement may be enforced because it “is lawful
on its face and there is no implication that it was entered into with
fraudulent design” (Hilgendorff v Hilgendorff, 241 AD2d 481, 482).
Also contrary to defendant’s contention, “[t]he [A]greement was
bilateral in nature, rather than unilateral,” because it contained
mutual promises concerning, inter alia, custody of the child,
visitation and child support payments (Howard v BioWorks, Inc., 83
AD3d 1588, 1589). Defendant contends for the first time on appeal
that the Agreement contemplates an illegal act, and we therefore do
not address that contention (see Ciesinski v Town of Aurora, 202 AD2d
984, 985). In addition, we conclude that “defendant[] failed to
present sufficient evidence establishing that plaintiff breached the
[Agreement]” (CNP Mech., Inc. v Allied Bldrs., Inc., 84 AD3d 1748,
1750). We have reviewed defendant’s remaining contentions and
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                                                 CA 11-00830

conclude that they are without merit.




Entered:   November 10, 2011            Patricia L. Morgan
                                        Clerk of the Court
