In its June, 2019 decision in English v. Smith, the Second Department reminds to properly memorialize any agreed-upon understandings or changes to a divorce settlement agreement.

The parties’ Separation Agreement was incorporated but not merged into their 2015 judgment of divorce. The father was to pay the mother child support. In addition, the parents would share equally in the costs of their child’s undergraduate and graduate education, extracurricular activities, and uncovered medical, dental, orthodontic, eye care, and mental health treatment.

The agreement also provided that neither the agreement nor any provisions thereof could be modified or waived except by a writing “duly subscribed and acknowledged by both parties with the same formality as” the separation agreement itself.

The parties’ child began attending University College in Dublin, Ireland, on a full tuition scholarship in 2015. The father stopped making child support payments to the mother in May 2015. The father contended that the parties had agreed that they would equally share in paying the child’s living expenses in lieu of the father paying child support to the mother.

In 2017, the mother filed a violation petition. After a hearing, Suffolk County Family Court Support Magistrate Darlene Jorif-Mangane determined that the father violated the child support provisions of the Separation Agreement. Arrears were calculated at $50,865. The father filed objections and Family Court Judge David A. Morris denied the father’s objections. The father appealed.

The Second Department affirmed. The clear and unambiguous language of the Separation Agreement required that any waiver of support be written “with the same formality as” the separation agreement itself. Here, the father failed to establish that there was a written document clearly setting forth a waiver or the terms of a modification.

The appellate court also found that the father was not entitled to a set-off or credit for certain payments that he made directly to the parties’ child. The separation agreement did not provide for such a set-off or credit, had separate and distinct sections for child support and college expenses, and categorized college room and board as a college expense rather than as a component of child support. The court also upheld the determination that father’s payment for the child’s incidentals, such as the cell phone bill and gifts, constituted voluntary payments that could not be set-off against his child support obligation.

Peter S. Smith, PLLC, of Northport, represented the father. The mother represented herself.