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

1140
CAF 13-00708
PRESENT: CENTRA, J.P., FAHEY, CARNI, SCONIERS, AND VALENTINO, JJ.


IN THE MATTER OF JOANNA BARTON,
PETITIONER-RESPONDENT,

                    V                             MEMORANDUM AND ORDER

WILLIAM BARTON, RESPONDENT-APPELLANT.


CYNTHIA FEATHERS, GLENS FALLS, FOR RESPONDENT-APPELLANT.


     Appeal from an order of the Family Court, Onondaga County
(Michael L. Hanuszczak, J.), entered September 25, 2012 in a
proceeding pursuant to Family Court Act article 4. The order granted
petitioner an upward modification of child support.

     It is hereby ORDERED that the order so appealed from is
unanimously affirmed without costs.

     Memorandum: Respondent father appeals from an order granting
petitioner mother an upward modification of child support. Pursuant
to an agreement of the parties that was incorporated but not merged in
their judgment of divorce, the parties agreed with respect to child
support that, “in the event that either party’s income increases or
decreases by 25% through no fault of their own, either may petition
the Court for a de novo review of their respective child[ ] support
obligations and school cost contributions.” In her petition, the
mother alleged that her income had decreased by 25%. After a hearing,
the Support Magistrate determined that the father had more than a 25%
increase in income, and thereafter calculated the father’s child
support obligation in accordance with the Child Support Standards Act
([CSSA] Family Ct Act § 413).

     Although he does not dispute that his income has increased more
than 25%, the father contends that the Support Magistrate should have
dismissed the petition after finding that the mother failed to
demonstrate that she had a 25% decrease in income. We reject that
contention. While the father is correct that Family Court Act § 441
requires a court to dismiss a petition for modification of child
support if the allegations of the petition are not established by
competent proof, we note that pleadings are to be liberally construed
(see CPLR 3026; Family Ct Act § 165 [a]) and that courts may sua
sponte conform the pleadings to the evidence (see CPLR 3025 [c];
Harbor Assoc. v Asheroff, 35 AD2d 667, 668, lv denied 27 NY2d 490; see
also CPLR 3017 [a]). We conclude that the Support Magistrate properly
conformed the petition to the proof, and we reject the father’s
                                 -2-                          1140
                                                         CAF 13-00708

contention that he was prejudiced thereby (see Matter of Heintz v
Heintz, 28 AD3d 1154, 1154-1155; Matter of Chesko v Chesko, 274 AD2d
729, 730).

     We reject the father’s further contention that the amount of
child support awarded was unjust and inappropriate (see Family Ct Act
§ 413 [1] [f]). Although the father’s visitation expenses were
extraordinary inasmuch as he lived and worked in New York City but
also maintained a home in Syracuse to visit the children on weekends,
that was simply one factor for the court to consider (see § 413 [1]
[f] [9]). The father also notes that his child support obligation as
set forth in the agreement was less than what would be the amount
under the CSSA because, inter alia, he agreed to pay for the
children’s private school tuition without contribution from the
mother. He contends that, “[g]iven this linkage, it made no sense
[for the Support Magistrate] to keep the father’s tuition obligation
intact (with a negligible contribution from the mother), while
quadrupling his basic support.” We reject that contention. The
Support Magistrate ordered the mother to pay her pro rata share of the
private school tuition and, while the father dismisses the mother’s
contribution as negligible, that is a function of the vast disparity
in income between the parties. We have considered the father’s
remaining contentions and conclude that they are without merit.




Entered:   November 8, 2013                    Frances E. Cafarell
                                               Clerk of the Court
