Opinion
E2018009340
02-10-2020
Susan M. Pearce, Plaintiff, v. Karl R. Pearce, Defendant.
APPEARANCES: Steven B. Levitsky, Esq. Attorney for Plaintiff Rochester, New York Maureen Pineau, Esq. Attorney for Defendant Rochester, New York
APPEARANCES: Steven B. Levitsky, Esq. Attorney for Plaintiff Rochester, New York Maureen Pineau, Esq. Attorney for Defendant Rochester, New York Richard A. Dollinger, J.
Close? An old saw says that close only counts in hand grenades and horseshoes.
This phrase is often attributed to Baseball Hall of Fame member Frank Robinson to describe that no matter how "close" the final score in a baseball game, there is only one winner.
Then again, sometimes a legal dispute is resolved by resort to another adage: "close, but no cigar."
This phrase, apparently derived from dart-throwing in traveling carnivals, is very much an American expression and is little used elsewhere in the English-speaking world. The first prominent use of 'close, but no cigar' surfaced in the 1935 film version of Annie Oakley, when the heroine instructs Wild Bill Cody that his shot was: "Close, Colonel, but no cigar!" http://disappearingidioms.com/close-but-no-cigar/. Other courts have used the phrase to highlight that "close" is often not good enough to meet statutory requirements, a position advocated by the mother in this instance. See Old Dominion Elec. Coop. v. FEC., 892 F 3d 1223 (D.C. Cir. 2018). --------
But, if the language describing child support in a separation agreement is close enough to the statutory recital in the Domestic Relations Law to give both parents notice of their obligations, this court abides by the first adage and sees little reason to upset an entire agreement simply because the agreement does not exactly parrot the statute's language.
In this matter, a mother seeks to invalidate the provisions of a separation agreement which set forth the child support obligation, arguing that the agreement fails to adequately spell out the presumptive amount of support as required by Domestic Relations Law §240(1-b)(h). The statute dictates that an agreement for such support "shall include . . . that the basic child support obligation provided for herein would presumptively result in the correct amount of child support to be awarded." Id.
The agreement in this matter, after outlining the father's employment, annual income and the appropriate percentage to be applied to his net income (after deducting social security taxes), states: "Pursuant to the CASA, the presumptive amount of child support would be $45 per week." In his argument before this Court, the mother claims that the "magic" formulation is missing from the agreement and therefore, the child support provisions should be vacated. In response, the husband argues, in essence, the language complies with the statute and was found to be acceptable in the final judgment of divorce.
A parcing of the statute - and the agreement - unravels the dispute before this Court. The statute states that any agreement "shall include" a "provision" that "basic child support" would "presumptively result" in the "correct amount" of support to be awarded. Here, there is a "provision" that references the CASA. The agreement does not include the word "basic" when describing the child support. The agreement fails to include the words "presumptively result," but it does contain the words of what "the presumptive amount . . . would be . . . ." In short, the agreement does not use the words "basic child support" nor does it use the word "result."
As this Court has previously noted, child support agreements that do not "contain these recitals" as required by the Domestic Relations Law are invalid and unenforceable. Barone v. Barone, 54 Misc 3d 599 (Sup. Ct. Monroe County, Dollinger J., 2016). However, other courts which have invalidated agreements for failure to include the description of "basic child support" under the support guidelines and its result in the "presumptively correct amount of support" have described that language as a "recital," just as this Court previously did in Barone v. Barone. See Matter of Hardman v. Coleman, 154 AD3d 1146 (3d Dept 2017); Young v. Young, 142 AD2d 612 (2d Dept 2016). In this Court's view, the careful use of the words "recital" in these appellate decisions strongly suggests that the reviewing court should look to the substance of the language and not its exact phrasing in determining whether the agreement disclosed "the basic child support(calculated using the CSSA guidelines)" and equating that amount to the "presumptively correct amount" of support. Baranek v. Baranek, 54 AD3d 789 (2d Dept 2008). In other contexts, courts have noted although the agreement does not specifically state that the CASA would presumptively result in the correct child support, if the agreement acknowledges that the CASA basic child support provisions govern the parties' obligations, the agreement should be valid. Gallet v. Wasserman, 280 Ad2d 296 (1st Dept 2001).
In that regard, several appellate courts have described this provision of the Domestic Relations Law as a notice statute:
All of its [DRL §240(1-b)(h)] key elements, as described above, tend toward the same overriding objective-to advise the parties that there is a standard method of child support calculation and what it entails, and that they may choose to opt out
of it. Accordingly, as long as the agreement so apprises the parties, and contains sufficient information by which the child support amount under the standard formula can be readily ascertained, the primary purpose of the statute will be accomplished and deviation from such CASA guidelines permitted.V.S. v. A.S., 58 Misc 3d 418 (Sup. Ct. Westchester Cty 2017). Because this section is principally a notice statute, then "substantial compliance rather than slavish adherence to its terms will undoubtedly suffice." Id. at 422. In other instances, courts have relied on the substance of the language and it being "sufficient" rather requiring "precise language" parroting the statute. Rockitter v. Rockitter, 113 AD3d 745, 746 (2d Dept 2014). Other courts have simply required that the language simply be "adequate" to notify the parties of their obligations under CASA. Chalk v. Chalk, 74 3d 1118 (2d Dept 2010).
In reviewing the language in this agreement, it clearly provides "adequate" and "sufficient" notice to the parties of their respective obligations under CASA. The "magic" language, which the wife seeks to insert into his agreement, is not necessary to make the obligation enforceable as a matter of law. The statute requires the parents to have "notice" of their obligations: the language in this agreement achieves that goal. This Court, in reaching this conclusion, sides with the trial court in Spivak v. Spivak, 109 NYS 3d 872 (2d Dept 2019). In that matter, the trial court noted:
Absent a clear violation of §240(1-b)(h), to strip away only one part of the Agreement and thereby permit one party to cherry pick for enforcement only certain provisions of it would subvert the parties overall intent."Spivak v. Spivak, ___ NYS 3d ___. p.10 (Sup.Ct. Westchester Cty 2017(Colangelo, J.), aff 109 NYS 3d 872 (2d Dept 2019).
The father also argues that the incorporation of the agreement into the judgment of divorce is evidence that the child support language met the requirements of Section 240(1-b)(h). The Court declines to reach that issue, given its conclusion on the substance of the language in this agreement.
Close — like a horseshoe or a hand grenade - is enough here and the Court will hold the cigar for another day.
The mother's application to vacate the child support provisions in the agreement is denied. The father's application to dismiss is granted.
SUBMIT ORDER ON NOTICE. 22 NYCRR 202.48. Dated: February 10, 2020 __________ Richard A. Dollinger, A.J.S.C.