        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

951
CAF 13-00206
PRESENT: SMITH, J.P., PERADOTTO, CARNI, AND LINDLEY, JJ.


IN THE MATTER OF LISA A. GALLAGHER,
PETITIONER-APPELLANT,

                    V                             MEMORANDUM AND ORDER

MICHAEL T. GALLAGHER, RESPONDENT-RESPONDENT.


WELCH & ZINK, CORNING (JEFF N. EVANS OF COUNSEL), FOR
PETITIONER-APPELLANT.

BETZJITOMIR & BAXTER, LLP, BATH (SUSAN BETZJITOMIR OF COUNSEL), FOR
RESPONDENT-RESPONDENT.

CAROLYN KELLOGG JONAS, ATTORNEY FOR THE CHILDREN, WELLSVILLE.


     Appeal from an order of the Family Court, Steuben County (Joseph
W. Latham, J.), entered April 26, 2012 in a proceeding pursuant to
Family Court Act article 4. The order, insofar as appealed from,
denied the amended petition.

     It is hereby ORDERED that the order insofar as appealed from is
unanimously reversed on the law without costs, the amended petition is
reinstated, and the matter is remitted to Family Court, Steuben
County, for further proceedings in accordance with the following
Memorandum: Petitioner mother commenced this proceeding seeking an
upward modification of respondent father’s child support obligation as
set forth in the parties’ separation agreement. We agree with the
mother that Family Court erred in concluding, following a hearing,
that she failed to establish a sufficient change in circumstances to
warrant modification of the father’s child support obligation.

     The parties’ separation agreement, which was incorporated but not
merged into the judgment of divorce, provided, inter alia, that the
parties were opting out of the requirements of the Child Support
Standards Act based on several factors, including that the children
would spend a significant portion of time with the father pursuant to
the visitation schedule set forth in the separation agreement. In her
petition, the mother alleged that there had been a breakdown in the
father’s relationship with the children such that there was only
sporadic visitation with them, leading to a concomitant increase in
her child-rearing expenses. The evidence presented at the hearing
establishes that such a breakdown occurred.

     We agree with the mother that “the complete breakdown in the
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                                                         CAF 13-00206

visitation arrangement, which effectively extinguished [the father’s]
support obligation, constituted an unanticipated change in
circumstances that created the need for modification of the child
support obligations” (Matter of Gravlin v Ruppert, 98 NY2d 1, 6; see
Matter of McCormick v McCormick, 97 AD3d 682, 683; Matter of Joslin v
Sullivan, 12 AD3d 1070, 1070). We therefore reverse the order insofar
as appealed from, reinstate the amended petition, and remit the matter
to Family Court for a determination of the appropriate amount of
support to be paid by the father, after a further hearing if
necessary.




Entered:   September 27, 2013                  Frances E. Cafarell
                                               Clerk of the Court
