Opinion
2013-02-19
William DAVID, Plaintiff–Appellant, v. Onilda CRUZ, Defendant–Respondent.
Bernfeld, DeMatteo & Bernfeld, LLP, New York (Jeffrey L. Bernfeld of counsel), for appellant. Daniel S. Perlman, New York, for respondent.
Bernfeld, DeMatteo & Bernfeld, LLP, New York (Jeffrey L. Bernfeld of counsel), for appellant. Daniel S. Perlman, New York, for respondent.
FRIEDMAN, J.P., ACOSTA, RENWICK, RICHTER, ROMÁN, JJ.
Order, Supreme Court, Bronx County (Mark Friedlander, J.), entered on or about August 10, 2011, which, insofar as appealed from, upon renewal of plaintiff's cross motion to enforce a settlement agreement, partially granted the cross motion, unanimously reversed, on the law, without costs, and the cross motion denied in its entirety.
An agreement purporting to opt out of the basic child support obligations set forth in the Child Support Standards Act (CSSA) must “include a provision stating that the parties have been advised of the provisions of [the CSSA],” must specify the amount that the basic child support obligation would have been, and the reason or reasons for the deviation (Family Court Act § 413[1] [h]; Domestic Relations Law § 240[1–b][h]; see Baranek v. Baranek, 54 A.D.3d 789, 864 N.Y.S.2d 94 [2d Dept. 2008],lv. dismissed14 N.Y.3d 903, 903 N.Y.S.2d 340, 929 N.E.2d 404 [2010] ).
“Such provision may not be waived by either party or counsel” (Family Court Act § 413[1][h]; Domestic Relations Law § 240[1–b][h]; see Blaikie v. Mortner, 274 A.D.2d 95, 99–101, 713 N.Y.S.2d 148 [1st Dept. 2000];Matter of Burnside v. Somerville, 202 A.D.2d 1064, 609 N.Y.S.2d 127 [4th Dept. 1994] ).
Here, both the settlement agreement and the subject order effectuating it failed to recite that the parties were aware of the CSSA guidelines, failed to set forth the basic child support obligation, and failed to set forth the reasons for deviating from the guidelines ( seeFamily Court Act § 413[1] [h]; Domestic Relations Law § 240[1–b][h]; Baranek, 54 A.D.3d at 790–791, 864 N.Y.S.2d 94;Matter of Michelle W. v. Forrest James P., 218 A.D.2d 175, 637 N.Y.S.2d 538 [4th Dept. 1996] ).
Although the invalidity of a child support provision does not necessarily invalidate the agreement in its entirety ( see e.g. Cimons v. Cimons, 53 A.D.3d 125, 129, 861 N.Y.S.2d 88 [2d Dept. 2008] ), the agreement at issue cannot be salvaged by deeming it divisible for partial illegality and severing and enforcing the provisions that do not pertain to child support. The provisions pertaining to child support constituted the main objective of the agreement, or the bargained-for consideration inducing defendant to agree to the remainder of the agreement, including the injunctive provisions ( see e.g. Georgia Props., Inc. v. Dalsimer, 39 A.D.3d 332, 334, 835 N.Y.S.2d 41 [1st Dept. 2005];cf. Baranek, 54 A.D.3d at 791, 864 N.Y.S.2d 94).