In this post-judgment matrimonial proceeding, Plaintiff Todd Rome (hereinafter "Plaintiff"), moves by Order to Show Cause for an order directing that Defendant Carol Rome (hereinafter "Defendant") pay fair and reasonable child support for the parties' two children, J.R., age 15, and S.R., age 13. Plaintiff further moves for an order directing Defendant to pay her pro rata share of expenses related to the children and for an award of counsel fees. Defendant opposes the motion. She cross-moves for an award of counsel fees and for sanctions due to the purported frivolous nature of Plaintiff's application. Plaintiff opposes the cross-motion.

The parties were divorced by Judgment of Divorce dated March 14, 2008 (hereinafter "Judgment"). The parties executed a separation agreement in February 2008 (hereinafter "Agreement"), which was incorporated but not merged into the Judgment. Under the terms of the Agreement, the parties were to have joint legal and physical custody of the children subject to a parenting plan. The children were to primarily reside with the Defendant. The Agreement further provided that the Plaintiff was to pay $5,000 per month in child support and that the parties were to split equally certain expenses for the benefit of the children including private school tuition, various unreimbursed medical costs, extracurricular activities, summer camp and college tuition.

In the Agreement, the parties addressed a possible change in the custodial arrangement. In the instance where primary residential custody changed from the Defendant to the Plaintiff, the Agreement states that "there shall be no monthly payments of child support from either party to the other." With respect to the additional expenses that had been shared equally, the Defendant was no longer required to pay for them upon an emancipation event. Under the terms of the Agreement, an emancipation event would occur if the children establish permanent residence away from the Defendant. It is undisputed that the children now live with the Plaintiff with whom they have established a permanent residence. [*2]

Plaintiff contends that the children began to reside with him soon after the Judgment was signed on March 14, 2008. He points to the Defendant's remarriage in December 2008, when she moved to Florida where her husband resides. He further asserts that since May 2011, the Defendant has failed to exercise her parenting time with the children and has not continued to pay for her share of the expenses. It is his position that the Defendant has shifted the full responsibility of the support of the children to him. He further indicates that the Defendant has begun to miss key events in the children's lives including graduations, birthday parties and that she failed to visit them at camp.

Defendant disputes the Plaintiff's claims regarding her parenting time with the children. She contends that the Plaintiff has a goal to extract money from her. She indicates that there has been no unanticipated change in circumstances that would warrant a modification of the Agreement since it contemplated a change in the children's primary residence. The Defendant further argues that she has paid far more on behalf of the children then required by the Agreement since she was not required to pay any child support or expenses where the children began to reside permanently with the Plaintiff. She contends that she has paid over $300,000 in expenses for the children over a three year period. According to the Defendant, this demonstrates that she has not abandoned the children. Lastly, she asserts that the Order to Show Cause must be dismissed as the Plaintiff has failed to allege that the children's needs are not being met. In light of the above, Defendant contends that the Plaintiff's application is frivolous.

The Court has found that the terms of a separation agreement that is incorporated but not merged into a judgment of divorce acts as a contractual obligation binding the parties. Merl v. Merl, 67 NY2d 359 (1986). Where the parties have executed a settlement agreement it is "presumed that they have anticipated and adequately provided for the child's future needs." Boden v. Boden, 42 NY2d 210, 212-213 (1977). The terms of a settlement agreement "should not be freely disregarded." Id.

While the Court has consistently recognized the importance of binding separation agreements, it has found that the terms of a separation agreement cannot bind a court from fulfilling its duty to see that parents meet their child support obligations. Maki v. Straub, 167 AD2d 589, 590 (3d Dept. 1990). A separation agreement does not diminish a parent's duty to support. Brescia v. Fitts, 56 NY2d 132 (1982). Similarly, it has been stated that the children, not being a party to the separation agreement, cannot be bound by its terms. Pecora v. Pecora, 207 AD2d 215, 218 (2d Dept. 1995). It is well recognized that a parent's duty to support their child is a matter of fundamental public policy in New York. Cellamare v. Lakeman, 36 AD3d 906 (2d Dept. 2007) citing Roe v. Doe, 29 NY2d 188 (1971).

The Court has squarely addressed the instance where parents provide for the termination of child support payments in a separation agreement. In Thomas B. v. Lydia D., 69 AD3d 24, 32 (1st Dept. 2009), the Court found that "parents cannot contract away the duty of support." Similarly, the Court has noted that a parent may not eliminate or diminish his or her duty to support by way of separation agreement. Cellamare, 36 AD3d at 906.

While the Defendant asserts that the Plaintiff's application must be denied since he has failed to demonstrate a substantial change of circumstances, the Court finds that the Plaintiff does not need to meet that burden for this application to go forward. Under the terms of the Agreement, the Defendant is required to pay nothing on behalf of the children and has been under no obligation since some time in 2008. Such provision is not binding and against the public policy of providing for the [*3]support of children. The relevant inquiry is whether the children's needs are being met as their needs will take precedence over the Agreement.Brescia v. Fitts, 56 NY2d at 141.

The Court is unable to determine whether the needs of the children have been met since 2008 or are presently being met. Little has been presented by either party to demonstrate what the children's needs are at this time. In addition, although the Defendant asserts that she has expended a significant amount on the children since they permanently moved to live with the Plaintiff, it is difficult to ascertain from her papers what she has actually paid as she supplies no supporting documentation. Lastly, the Defendant fails to submit the requisite Net Worth Statement which leaves this court with no ability to determine what her basic child support obligation would be on an ongoing basis.

Accordingly, the Court sets this matter down for a hearing on the issues of whether the children's needs are being met by the Defendant's purported expenditures on their behalf and the amount of child support to be paid by the Defendant on an ongoing basis. Defendant is required to submit a Net Worth Statement to the Court within ten days of this decision. The hearing shall be held on May 17, 2012 at 9:30 a.m.

All matters not decided herein are hereby denied.

This constitutes the decision and order of the court.

Dated: March 28, 2012

New York, New York

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HON. LORI S. SATTLER J.S.C.