Perry v. Knab

Order unanimously reversed on the law without costs, petition reinstated and matter remitted to Erie County Family Court for further proceedings in accordance with the following Memorandum: Family Court erred in denying petitioner’s objections to an order of the Hearing Examiner that granted respondent’s motion to dismiss the petition for failure to state a cause of action. An oral stipulation, which was incorporated but not merged in the divorce judgment, required petitioner to pay "unallocated family support” to respondent, who was granted sole custody of the parties’ two children. The stipulation did not specify when, if ever, unallocated support would cease. The stipulation also, however, required petitioner to provide life insurance coverage for the children, which coverage may "decrease as the years go on, to include the $60.00 per week unallocated, for the term of the unallocated support.”

Upon emancipation of the younger child, petitioner commenced this action for modification of support. The petition alleges that, pursuant to the divorce judgment, petitioner is not obligated to pay support beyond emancipation of the children. The Hearing Examiner dismissed the petition without a hearing, concluding that the stipulation unambiguously provided that petitioner’s support obligation would survive emancipation of the children. We disagree. In our view, the parties’ reference to "the term of unallocated support” renders the stipu*855lation ambiguous because it suggests that support would cease upon the happening of some event (cf., Meccico v Meccico, 76 NY2d 822, rearg denied 76 NY2d 889). Because the stipulation is ambiguous, a hearing must be held to determine the parties’ intent (see, Stukalin v Stukalin, 147 AD2d 632; Gentry v Stevens, 145 AD2d 532). The matter is therefore remitted for that purpose. (Appeal from Order of Erie County Family Court, Townsend, J.—Support.) Present—Pine, J. P., Fallon, Wesley, Balio and Boehm, JJ.