The Child Support Standards Act authorizes parents to agree to a child support obligation that deviates from the presumptive formula provided in that statute. However, if they are going to deviate from the formula, the parents must state what the obligation would have been if the formula were to be applied, and the reasons why the parties have agreed to deviate.

In its September 26, 2018 decision in Fasano v. Fasano, the Appellate Division, Second Department, held that if one of those reasons no longer applies, such is a “substantial change in circumstances” warranting a new child support determination.

The parties were married in 1993 and have two children together. In October, 2012, the parties entered into a stipulation of settlement of a prior divorce action after which that action was discontinued.

That stipulation provided that although the husband’s monthly child support obligation using the C.S.S.A. calculation would be $1,994.45 on the first $130,000.00 of combined parental income (then, the “cap”) and $2,575.61 on the total combined parental income, the parties had agreed that the husband’s monthly child support obligation would be $1,500.00. The stipulation also provided that there would be no “add-ons” or “additional health costs” added to these child support payments, even though the C.S.S.A. generally provides that each parent’s share of unreimbursed health care expenses is to be prorated in the same proportion as each parent’s income is to the combined parental income.

The stipulation contained an explanation that the deviation from the C.S.S.A. calculation was necessary “to allow the [husband] to retain the marital residence as a place for the children to be with him when they are together” and had “been agreed by the parties to be in the best interests of the children to provide them continuity and stability in their living and educational environments.”

D.R.L. §240(1-b)(h) provides:

     (h)  In the event that such agreement or stipulation deviates from the basic child support obligation, the agreement or stipulation must specify the amount that such basic child support obligation would have been and the reason or reasons that such agreement or stipulation does not provide for payment of that amount. Such provision may not be waived by either party or counsel. Nothing contained in this subdivision shall be construed to alter the rights of the parties to voluntarily enter into validly executed agreements or stipulations which deviate from the basic child support obligation provided such agreements or stipulations comply with the provisions of this paragraph. . . .

In December 2013, the wife commenced this new divorce action, requesting that the terms of the stipulation of settlement be incorporated into the judgment of divorce. However, in June 2014, the wife moved, inter alia, for an upward modification of the husband’s child support obligation, including an add-on for unreimbursed health care expenses. The wife presented evidence that the husband had recently sold the marital residence and was moving to another residence in a different school district. The wife also presented evidence that one of the children had begun incurring significant unreimbursed health care expenses after being hospitalized for mental illness.

In an order dated March 3, 2016, Supreme Court Suffolk County Justice Carol Mackenzie denied that branch of the wife’s motion which was for an upward modification of the husband’s child support obligation. The judgment of divorce incorporated the stipulation of settlement, awarding the wife child support of $1,500 per month as per the stipulation. The wife appealed.

The lesson to be learned: care must be taken when drafting the reasons for the deviation. Question: may the agreement provide what happens if a particular reason is no longer applicable?

The Second Department reversed. It held that the stipulation indicated that the parties’ reason for deviating from the C.S.S.A. calculation was to allow the husband to retain the marital residence as a place for the children to be with him when they were together.

Under these circumstances, the [husband’s] actions in selling and moving away from the marital residence constituted a substantial change in circumstances.

A new child support determination was warranted and the matter was remitted for that new determination after applying the C.S.S.A. calculation.

Christopher J. Chimeri and Nicole J. Brodsky, of Quatela Chimeri, PLLC, represented the wife. Steven Feldman, of counsel to Arza Rayches Feldman, of Uniondale, represented the husband.