Opinion
2014/14139
03-08-2021
GARY M.K., Plaintiff, v. EMILY A.K., Defendant.
FERO & INGERSOLL, LLP, Timothy E. Ingersoll, Esq., Attorney for the Plaintiff Rochester, New York, Frank Beretta, Esq., Attorney for the Defendant, East Rochester, New York
FERO & INGERSOLL, LLP, Timothy E. Ingersoll, Esq., Attorney for the Plaintiff
Rochester, New York, Frank Beretta, Esq., Attorney for the Defendant, East Rochester, New York
Richard A. Dollinger, J.
"One for all and all for one?"
The epic Musketeer's logic can be compelling but does it apply when a couple, in an agreed order, deviate from certain portions of the Domestic Relations Law and does that "one" deviation become a waiver that prohibits a court from applying "all" other provisions of the statute when one spouse seeks modification of child support?
This Court, in a d'Artagnon-like parry, must resolve whether a waiver, in one aspect of a prior court, constitutes a wholesale waiver of a litigant's rights to modification under the Child Support Standards Act ("CSSA"). In this instance, the couple's separation agreement, executed in June 2015, clearly required that in evaluating a request for modification of child support, the Court would consider, among other statutory requirements, a "substantial change of circumstances." In this respect, the couple's agreement incorporated the gist of Section 451 (3) (a) of the Family Court Act, in which the Legislature authorized courts to modify child support orders "upon a showing of a substantial change in circumstances." Matter of Foster-Fisher v. Foster-Fisher , 160 AD3d 951 (2d Dept 2018) ; see also Schoenl v. Schoenl , 62 Misc 3d 567 (Sup. Ct. Monroe Cty 2018) (Dollinger, J.).However, within a year, the couple encountered further complications and competing motions for modification of the child support were posited before the Court. The Court, after ironing out a stipulated settlement, issued an order in 2016 that the pro rata share of the child support obligations in the original separation agreement were unjust and unfair and the couple then entered into the stipulated order resolving the support obligations.
The stipulated order includes the following language:
The parties have voluntarily stipulated to deviate from a strict allocation of the relevant provisions of the Child Support Standards Act and are requesting that the court approve their agreement to deviate based upon the following factors.
Significantly, the couple did not completely waive all the aspects of the Domestic Relations Law in any future attempt to modify their child support obligations. In a subsequent paragraph, the stipulated order reads:
The terms of this order shall be subject to modification upon a showing of a substantial change in circumstances but shall not otherwise be subject to modification upon an allegation that three years have passed or there has been a 15% change in parties income as a result of the parties knowing an intelligent opting out of those modification factors.
In any reading of the two portions of this stipulated order, it is apparent that the couple opted out of the statutory requirement for a modification of child support either through the simple passage of time or alteration of their incomes. But, the language in the second ordered paragraph above explicitly indicates that a modification based on a "substantial change of circumstances" still controls the resolution of any child support debate. This Court, according the language and any reasonable interpretation of its intended meaning, declines to read any other portion of the order as somehow constituting a waiver of either parent's right to bring a modification petition based on a "substantial change of circumstances."
In declining to read the first ordered paragraph as a waiver of the substantial change standards, this Court notes that even without the second ordered paragraph, the Court would not be inclined to consider a waiver of the statutory principles for child support modification. A waiver of any aspect of child support, to be enforceable, "must be a voluntary and intentional relinquishment of a known and otherwise enforceable right." Stevens v. Stevens , 92 AD3d 873 (2d Dept 2011); Luken v Luken , 48 Misc 3d 559 (Sup. Ct. Monroe Cty, Dollinger, J. 2014). Waiver is an intentional relinquishment of a known right and should not be lightly presumed. Gilbert Frank Corp. v Federal Ins. Co. , 70 NY2d 966, 968 (1988) (to sustain waiver, there must be a clear manifestation of intent ... to relinquish the protection of the contractual limitations period could be reasonably inferred). This Court is extraordinarily reluctant to broadly read or even infer any waiver that releases a party from statutory obligations to pay support or their statutory right to seek modification of support. The language of the stipulated order includes the word "deviate," which refers only to the fact that strict compliance with CSSA would produce a support order different from the amount contained in the stipulation. The agreed amount of support stated in the stipulated order "deviates" from the amount otherwise required by CSSA. In that respect, the "deviation" only applies to the then current calculation of support and cannot be read, even in isolation, to constitute a "waiver" of either spouse's right to seek modification under the statute.
Under these circumstances, neither parent waived their statutory right to prove a substantial change in circumstances if they were seeking to modify the child support obligations set forth in the 2016 order. The hearing will go forward on that basis. In the language of the Musketeers: "one" deviation from part of the CSSA does not create a waiver for "all" the statutory provisions. The "one" — use of the word "deviates" to describe the stipulated calculation — stands alone: it does incorporate or even reference waiver of "all" the modification rules in the CSSA. Under the order and agreement, a substantial change in circumstances, if proven, justifies a change in child support despite a waiver of the remaining statutory provisions.