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Matter of Cuffee v. Miller

Appellate Division of the Supreme Court of New York, Second Department
Oct 14, 1997
243 A.D.2d 563 (N.Y. App. Div. 1997)

Opinion

October 14, 1997

Appeal from the Family Court, Orange County (Bivona, J.),


Ordered that the order is affirmed, with costs.

In the instant proceeding to enforce a prior order granting child support, the father, pursuant to a stipulation of settlement, admitted that the violation was willful and agreed, inter alia, to make current child support payments and payments toward arrears. A dispositional order incorporating the terms of the stipulation of settlement was entered November 25, 1996. The mother's subsequent application for an award of counsel fees was denied, and she appeals. We affirm.

Family Court Act § 454 (3) provides that an award of counsel fees is mandatory upon a finding that the failure to comply with a prior support order was willful. However, in the instant case the finding of willfulness was based upon an admission pursuant to a stipulation of settlement which made no mention of counsel fees. The mother does not seek to set aside the stipulation of settlement ( see, Burkart v. Burkart, 182 A.D.2d 798), but rather seeks to amend the agreement. As the Family Court noted, it would not have been proper, in the case before it, to amend a stipulation of settlement if the parties have not assented to such a reformation ( see, Blake v. Blake, 229 A.D.2d 509; Tinter v. Tinter, 96 A.D.2d 556).

Rosenblatt, J.P., Copertino, Krausman and Goldstein, JJ., concur.


Summaries of

Matter of Cuffee v. Miller

Appellate Division of the Supreme Court of New York, Second Department
Oct 14, 1997
243 A.D.2d 563 (N.Y. App. Div. 1997)
Case details for

Matter of Cuffee v. Miller

Case Details

Full title:In the Matter of RENEE CUFFEE, Appellant, v. NICHOLAS D. MILLER, Respondent

Court:Appellate Division of the Supreme Court of New York, Second Department

Date published: Oct 14, 1997

Citations

243 A.D.2d 563 (N.Y. App. Div. 1997)
663 N.Y.S.2d 111

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