The First Department, in its February 19, 2013 decision in David v. Cruz, threw out an entire settlement agreement because of its failure to include language required by the Child Support Standards Act.
The C.S.S.A. sets out a presumptive formula for the calculation of a parent’s child support obligation.
Parents are free to agree to vary the formula and fix their own base periodic child support obligation. They may also fix the parents’ respective liabilities for addition health care, child care and add-on expenses, if not others. However if they so agree, the parents must recite in their agreement what would have been the results had the presumptive statutory formula been applied.
As noted by the First Department, an agreement purporting to opt out of the presumptive basic child support obligations set forth in the Child Support Standards Act must include a provision stating that the parties have been advised of the provisions of the C.S.S.A., must specify the amount that the basic child support obligation would have been, and must state the reason or reasons for the deviation (Family Court Act § 413  [h]; Domestic Relations Law § 240[1–b][h]). That required recitation may not be waived by either party or by counsel.
In this case, both the parents’ settlement agreement and the support order effectuating that agreement failed to recite that the parties were aware of the C.S.S.A. guidelines, failed to set forth the basic child support obligation, and failed to set forth the reasons for deviating from the guidelines. Thus, the party’s agreed-upon child support provision and the order that incorporated it were invalid.
Although the invalidity of the child support provision did not necessarily invalidate the agreement in its entirety, here, the agreement could not be salvaged by deeming it divisible for partial illegality. The appellate court would not sever and enforc the provisions not pertaining to child support.
Here, the provisions pertaining to child support constituted the main objective of the agreement. Those provisions were the bargained-for consideration inducing the mother to agree to the remainder of the agreement.
As a result, the order of Bronx County Supreme Court Justice Mark Friedlander that had partially granted the father’s motion to enforce the agreement was reversed and the motion denied in its entirety.
Jeffrey L. Bernfeld, Esq., of Bernfeld, DeMatteo & Bernfeld, LLP, of Manhattan, represented the father. Daniel S. Perlman, Esq., also of Manhattan, represented the mother.