
    Barbara Merl, Appellant, v Paul Merl, Respondent.
    Argued March 20, 1986;
    decided May 13, 1986
    
      POINTS OF COUNSEL
    
      Donald H. Greener and Thomas J. Sinnickson for appellant.
    I. When a separation agreement is incorporated in but survives a divorce decree, then the separation agreement continues in effect as a separate and independent contract between the parties and should not be disturbed by the court. (Goldman v Goldman, 282 NY 296; Galusha v Galusha, 116 NY 635; Schmelzel v Schmelzel, 287 NY 21; Iseman v Iseman, 48 AD2d 809; Morse v Morse, 45 AD2d 370; Stillman v Stillman, 20 AD2d 723; King v Schultz, 29 NY2d 718; McMains v McMains, 15 NY2d 283; Kleila v Kleila, 50 NY2d 277; Bowmer v Bowmer, 50 NY2d 288; Gardner v Gardner, 33 NY2d 899.) II. The court cannot supply a material term to an agreement that the parties, themselves, did not incorporate therein. (Mitchell v Mitchell, 82 AD2d 849; Stern v Stern, 41 AD2d 676; Craig v Craig, 24 AD2d 588; Ives v Ives, 96 AD2d 643; Pelkey v Pelkey, 79 AD2d 835.) III. The change in surname in and of itself was not sufficient justification to warrant the lower court acting so precipitously to terminate the substantial obligations of defendant to the children as contained in the separation agreement. (Matter of Roe v Doe, 29 NY2d 188; Matter of Parker v Stage, 43 NY2d 128; Cohen v Schnepf, 94 AD2d 783; Kaplan v Wallshein, 57 AD2d 828.) IV. The trial court exceeded its authority by modifying a separation agreement, to which both parties had assented and which contract is clear and unambiguous on its face. (Surlak v Surlak, 95 AD2d 371; Da Silva v Musso, 53 NY2d 543.)
    
      Paul C. Kurland for respondent.
    I. The factual determinations of the trial court and court below are not subject to review. Appellant’s argument with respect to the facts contrary to those findings may not be considered. (Matter of Hofbauer, 47 NY2d 648; People ex rel. Scarpetta v Spence-Chapin Adoption Serv., 28 NY2d 185, cert denied and appeal dismissed sub nom. DeMartino v Scarpetta, 404 US 805; Matter of Male Infant L., 61 NY2d 420; Hunt v Bankers & Shippers Ins. Co., 50 NY2d 938; Stanton v State of New York, 26 NY2d 990; Laverne v Incorporated Vil. of Laurel Hollow, 
      18 NY2d 635, 386 US 682.) II. Appellant mother breached her specific obligations under the separation agreement with the father. This breach is a complete defense to the claim for reimbursement of support for the adult sons. (Warner v Warner, 44 AD2d 904; Matter of Baker v Baker, 33 AD2d 812; Waxstein v Waxstein, 90 Misc 2d 784, 57 AD2d 863; Stone v Stone, 78 Misc 2d 788; Matter of Roe v Doe, 29 NY2d 188; Werber v Werber, 47 Misc 2d 399; Duryea v Bliven, 122 NY 567; Garbarino v Keller, 20 Misc 2d 303; Matter of Catherine W. v Robert F., 116 Misc 2d 377; Matter of Benjamin B. v Rivka M., 90 Misc 2d 850.) III. New York law does not require a father to continue to support two healthy adult sons who have deliberately abandoned him. (Matter of Roe v Doe, 29 NY2d 188; Cohen v Schnepf, 115 Misc 2d 879, 94 AD2d 783; Matter of "Shipley”, 26 Misc 2d 204; Matter of Pollack, 2 AD2d 756.) IV. Circumstances have changed dramatically since Mr. Merl entered into the modification of the separation agreement. (Matter of Boden v Boden, 42 NY2d 210; Cohen v Schnepf, 115 Misc 2d 879; Kaplan v Wallshein, 57 AD2d 828; Haskell v Haskell, 201 App Div 414, 236 NY 635.)
   OPINION OF THE COURT

Per Curiam.

Barbara and Paul Merl were married in June 1960 and had three children, who at the commencement of this proceeding in December 1982 were 22, 19 and 17 years old, respectively. The Merls separated in 1975. In January 1976 they executed a separation agreement that was incorporated into but not merged with the judgment of divorce thereafter obtained. The separation agreement was modified in March 1982, and, as modified, obligates defendant to pay child support of $110 per week per child and one half of each child’s college expenses and to continue health and life insurance coverage for the children’s benefit, until each child becomes emancipated. No argument is made that any of the children are emancipated. The agreement also obligates defendant to bequeath two thirds of his estate to the children. Barbara was given custody of the children with liberal visitation rights allowed Paul.

Barbara Merl has remarried and she and her children reside with her new husband, Ken Zimmerman. By motion made in the divorce proceeding, defendant sought a modification of the support obligations enuring to his two sons and the obligation to bequeath a part of his estate to them contending that they have abandoned him by legally changing their surname to Zimmerman and refusing to visit with, speak to, or maintain any relationship with him. He attributes this change from what he describes as having been a "loving and caring relationship” to a pattern of behavior by plaintiff and her new husband designed to alienate the children from him and destroy his relationship with his sons.

Both Trial Term and a divided Appellate Division, in reliance on our holdings in Matter of Boden v Boden (42 NY2d 210) and Matter of Brescia v Fitts (56 NY2d 132), concluded that the sons’ action in changing their surname from Merl to Zimmerman constituted an unanticipated and unreasonable change in circumstances warranting a modification of the support provisions of the separation agreement. We now reverse.

The case law distinguishes between modification of a separation agreement and that of a divorce decree. A separation agreement that is incorporated into but not merged with a divorce decree is an independent contract binding on the parties unless impeached or challenged for some cause recognized by law (Kleila v Kleila, 50 NY2d 277, 283; Christian v Christian, 42 NY2d 63; Leffler v Leffler, 40 NY2d 1036, affg 50 AD2d 93; Goldman v Goldman, 282 NY 296, 300; Galusha v Galusha, 116 NY 635; Steers v Steers, 69 AD2d 858). Indeed, "courts of this State enjoy only limited authority to disturb the terms of a separation agreement” (Kleila v Kleila, 50 NY2d 272, 283, supra). We have, however, acknowledged a court’s power to modify decrees or orders in respect to child support provisions deriving from a separation agreement incorporated but not merged therein upon a showing that the agreement was not fair and equitable when entered into, or that an unanticipated and unreasonable change in circumstances has occurred resulting in a concomitant need (Matter of Boden v Boden, 42 NY2d 210, 213, supra; Matter of Brescia v Fitts, 56 NY2d 132, 138, supra).

The separation agreement here has neither been impeached nor challenged for any cause recognized by law (Christian v Christian, 42 NY2d 63, supra). Defendant’s request for modification of the support obligations is based on his sons’ legal change of their surname. That conduct is not a valid basis on which to make the modification as requested.

Accordingly, the order of the Appellate Division should be reversed, with costs, and defendant’s motion denied.

Chief Judge Wachtler and Judges Meyer, Simons, Kaye, Alexander and Hancock, Jr., concur in Per Curiam opinion; Judge Titone taking no part.

Order reversed, etc.  