The required C.S.S.A. recitation in an oral open-court stipulation by which the parties explain why they have agreed to a child support obligation varying from the presumptive C.S.S.A. formula may not have to be as “precise” as that required in a written stipulation. Such appears to be the holding of the Appellate Division, Second Department, in its January 22, 2014 decision in Rockitter v. Rockitter.
On August 9, 2010, the parties had entered two stipulations to settle their divorce action. A written stipulation covered the parties’ joint custody of their two daughters. The second stipulation was oral, made on the record in open court and concerned child support and equitable distribution. Both stipulations were subsequently incorporated, but not merged, into the parties’ judgment of divorce.
Approximately 18 months later, the ex-wife commenced this action seeking to vacate the child support provisions of the oral support stipulation and the judgment of divorce. The ex-wife alleged that the support stipulation failed to comply the Child Support Standards Act because the parties did not make the required recitation of the reasons they chose to deviate from C.S.S.A. guidelines. Nassau County Supreme Court Justice Norman Janowitz granted the ex-husband’s motion to dismiss the complaint. The Second Department affirmed.
The C.S.S.A. requires that any agreement varying its presumptive child support formula contain specific recitals:
- (1) that the parties have been made aware of the C.S.S.A.;
- (2) that they are aware that the guidelines would result in the calculation of the presumptively correct amount of support;
- (3) that in the event the agreement deviates from the guidelines, it must recite the presumptively correct amount of support that would have been fixed pursuant thereto; and
- (4) the reason for the deviation.
The policy reasons underlying the requirement that waivers must be knowingly made are so strong that agreements that do not comply with the strictures of the C.S.S.A. are invalid and unenforceable, at least to the extent of the child support provisions set forth therein. Thus, for exmple, in David v. Cruz, discussed in my February 25, 2013 blog post, the First Department threw out an entire settlement agreement because of its failure to include language required by the Child Support Standards Act.
Here, however, the Second Department validated the ex-husband’s argument that the parties had articulated in their open-court oral stipulation, “albeit not in precise language, that the reason they were deviating from the guidelines was that the [ex-husband] was paying maintenance to the [ex-wife] during the period of deviation.” The Second Department agreed that this was enough: the support stipulation was sufficient to comply with the recital requirements of the C.S.S.A. The ex-wife’s action attacking the stipulation and divorce judgment was properly dismissed.
The C.S.S.A., itself, allows for the payment of maintenance to reduce the payor’s income before the child support formula is applied (if child support goes up after the maintenance payments end). The Court did not explain how, in this case, the child support obligation was at odds with this accomodation. Certainly, the recitation did not reveal it, or why.
It is common for trial judges to hand out prepared scripts for setting out grounds in open court in a divorce case that has been settled. The script makes sure the technicalities are covered. Such a script for an open-court child support stipulation would also be a useful tool.