Tierney v. Stewart , 115 A.D.2d 471 ( 1985 )

In a proceeding for modification of child-support payments, defendant husband appeals from a judgment of the Supreme Court, Orange County (Burke, R.), dated July 25, 1984, which, after a reference to hear and determine, awarded plaintiff wife an increase in child support, arrears, and counsel fees.

Judgment affirmed, with costs.

The parties were divorced in 1982. Their stipulation of settlement in open court contemplated annual adjustment of the ratio of child support each party was to provide, based upon their respective annual incomes. For 1982, it was agreed, inter alia, that defendant would pay 58% and plaintiff 42% of the child’s then-estimated annual support needs of $8,200. It was also agreed that unresolved requests for modification of child-support payments would be referred for determination to a court-appointed Referee, who might award counsel fees if the modification had "been sought or opposed without a reasonable basis in fact”. It was this procedure which the parties followed when they were unable to agree upon child support payments for 1983.

We find no error in the Referee’s award of increased child support based upon plaintiff’s evidence of actual costs. Defendant’s reliance upon published government figures for the average cost of raising a child was unjustified and inconsistent with the parties’ controlling stipulation of settlement. Nor do we find any error in the award of a $450 counsel fee to plaintiff. Defendant’s initial unilateral reduction in child support payments, coupled with his insistence upon a level of support not envisioned by the parties’ agreement, constituted unreasonable opposition to the modification request. Mangano, J. P., Bracken, Weinstein, Lawrence and Kooper, JJ., concur.