                           State of New York
                    Supreme Court, Appellate Division
                       Third Judicial Department
Decided and Entered: January 7, 2016                    520652
________________________________

MELISSA STRYKIEWICZ, Now
   Known as MELISSA
   FRANKLIN,
                    Appellant,
      v                                      MEMORANDUM AND ORDER

DANIEL J. STRYKIEWICZ,
                    Respondent.
________________________________


Calendar Date:    November 24, 2015

Before:    Garry, J.P., Rose, Lynch, Devine and Clark, JJ.

                              __________


      Gordon, Tepper & Decoursey, LLP, Glenville (Jenifer M.
Wharton of counsel), for appellant.

      Daniel Strykiewicz, Carlsbad, California, respondent
pro se.

                              __________


Rose, J.

      Appeals (1) from an order of the Supreme Court (Ferradino,
J.), entered May 16, 2014 in Saratoga County, which, among other
things, partially denied plaintiff's cross motion to modify the
parties' separation agreement, and (2) from an order of said
court (Chauvin, J.), entered August 25, 2014 in Saratoga County,
which denied plaintiff's motion for reargument.

      Plaintiff and defendant, who are the parents of two
children (born in 1993 and 1996), executed a separation agreement
containing terms, among others, obligating defendant to make
monthly child support payments in specified amounts until each
child's 21st birthday and generally requiring both plaintiff and
                              -2-                520652

defendant to share in the costs of each child's college
education. The separation agreement was thereafter incorporated,
but not merged, into the parties' 2007 judgment of divorce. Over
the ensuing years, Supreme Court (Ferradino, J.) issued a series
of modification orders adjusting defendant's child support
payments. However, because the orders did not contain the
termination dates of his support obligations, defendant moved to
correct the most recent order to include such dates and to modify
the amount of his support payments downward as of the impending
date of the oldest child's 21st birthday.

      Plaintiff then cross-moved to require defendant to
contribute toward the children's college expenses and for counsel
fees, among other things. Ultimately, Supreme Court granted
defendant's motion, reducing his child support obligation as of
the date of the oldest child's 21st birthday in July 2014 and
terminating defendant's obligation altogether upon the 21st
birthday of the youngest child in March 2017. As for plaintiff's
cross motion, the court denied her requests to determine
defendant's contribution to the children's college expenses and
for counsel fees, but otherwise granted her motion. She
subsequently moved to reargue, and Supreme Court (Chauvin, J.)
denied her request. Plaintiff now appeals from both orders.1

      Inasmuch as defendant failed to provide statutorily
required financial information in support of his request for a
downward modification of the amount of his support payments as of
the eldest child's 21st birthday, Supreme Court (Ferradino, J.)
erred in granting his motion. Defendant submitted two pay stubs
attached to a series of unsworn affidavits, without a statutorily
required sworn statement of net worth (see Domestic Relations Law
§ 236 [A] [2]; 22 NYCRR 202.16 [b], [k] [2]). Ordinarily, when a
party fails to provide a net worth statement in a support
proceeding, the court's proper course is "'to decline to hear the


    1
        Plaintiff's appeal from the order of Supreme Court
(Chauvin, J.) denying her motion for reargument must be dismissed
because the denial of such a motion is not appealable (see Hoover
v State of New York, 80 AD3d 1020, 1020 [2011]; Abele Tractor &
Equip. Co., Inc. v RJ Valente, Inc., 79 AD3d 1331, 1332 [2010]).
                              -3-                520652

motion . . . or to deny it without prejudice to renewal upon
compliance with the applicable requirements'" (Garcia v Garcia,
104 AD3d 806, 806 [2013], quoting Matter of Fischer-Holland v
Walker, 12 AD3d 671, 672 [2004]). However, in light of
defendant's pro se status and his clear entitlement to a downward
modification of his support obligation, we will remit for a
hearing on the issue of the amount to enable the court to
consider the parties' relative financial circumstances (see
Harold v Harold, 133 AD3d 1376, 1378 [2015]).

      Supreme Court also incorrectly treated plaintiff's cross
motion as one to modify the terms of the separation agreement,
rather than as a motion to enforce its terms. The separation
agreement simply states that plaintiff and defendant will share
the children's college education expenses "according to [the
parties'] relative means and abilities[.]" In our view, the
record "supports [plaintiff's] assertion that, although her
application was styled as a modification, it should instead be
viewed as a request for enforcement. The clear language of [the
agreement] reveals that the parties initially considered the
[children's] pursuit of a college education, intended to
contribute to that pursuit, and 'contemplated a later
determination by the court concerning the sharing of educational
expenses when appropriate'" (Matter of Covington v Boyle, 127
AD3d 1393, 1394 [2015], quoting Matter of Antes v Miller, 304
AD2d 892, 893 [2003]). Because plaintiff's cross motion sought
an initial determination of proportionate college expenses to be
paid by each party, rather than a readjustment of their fixed
support obligations (see Matter of Covington v Boyle, 127 AD3d at
1394), Supreme Court erred in requiring plaintiff to make a
showing of an unreasonable or unanticipated change in
circumstances. Instead, the court should have made a
determination regarding the parties' relative means and abilities
to pay for the children's college education. In light of this,
we must remit this issue to Supreme Court, as the record before
us is insufficiently developed with regard to defendant's
financial resources for us to determine the parties' relative
means and abilities to contribute to the children's college
expenses (see Matter of Costa-Daley v Daley, 100 AD3d 1198, 1201-
1202 [2012]).
                              -4-                  520652

      Finally, Supreme Court erroneously denied plaintiff's
request for counsel fees on the basis of her failure to make an
unnecessary evidentiary showing of a change in circumstances.
Although plaintiff has sufficiently established the value of the
legal services rendered to her, we must also remit this matter to
Supreme Court for a hearing, as "a sufficient evidentiary basis
[does not] exist for [us] to evaluate the respective financial
circumstances of the parties" (Matter of Buono v Fantacone, 252
AD2d 917, 919 [1998]; see Domestic Relations Law § 237 [b];
Matter of Brennan v Brennan, 109 AD2d 960, 962 [1985]).

     Garry, J.P., Lynch, Devine and Clark, JJ., concur.



      ORDERED that the order entered May 16, 2014 is modified, on
the law, without costs, by reversing so much thereof as granted
defendant's motion to modify his child support obligation and
denied that part of plaintiff's cross motion as sought
contribution from defendant for the children's college expenses
and as denied her request for counsel fees; matter remitted to
the Supreme Court for further proceedings not inconsistent with
this Court's decision and, pending said proceedings, the terms of
the child support order dated February 5, 2013 shall remain in
effect on a temporary basis; and, as so modified, affirmed.

      ORDERED that the appeal from the order entered August 25,
2014 is dismissed, without costs.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
