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Discord over Non-Compliant Child Support Orders
The four Judicial Departments have now adopted three disparate rules of law with regard to the proper procedural course required to obtain review of a child support provision contained in a stipulation of settlement or agreement, incorporated by reference into a judgment or order, which is violative of DRL ' 240(1-b)(h) or FCA ' 413(1)(g).
While the First Department has determined that a non-compliant child support provision can only be set aside by plenary action, the Second Department has ruled that such an order can be set aside by plenary action or by motion within an enforcement proceeding; both the First and Second departments have enforced (purportedly) non-compliant child support provisions where the payor has failed to follow the specified procedural requirements.
In contrast, the Fourth Department has repeatedly ruled that a non-compliant provision is void ab initio and that the court must re-compute child support pursuant to the Child Support Standards Act (CSSA), regardless of whether the payor has requested such relief. The Third Department has cited favorably to the Fourth Department rule.
What Does the Legislation Say?
DRL '240(1-b)(h) states the following in relevant part:
(h) A validly executed agreement or stipulation voluntarily entered into between the parties after the effective date of this subdivision presented to the court for incorporation in an order or judgment shall include a provision stating that the parties have been advised of the provisions of this subdivision, and that the basic child support obligation provided for therein would presumptively result in the correct amount of child support to be awarded. 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 ' Any court order or judgment incorporating a validly executed agreement or stipulation which deviates from the basic child support obligation shall set forth the court's reasons for such deviation (emphasis added).
In Gallet v. Wasserman, 280 AD2d 296 (1st Dept, 2001), the First Department restated the following test for review of a child support provision pursuant to DRL ' 240(1-b)[h]:
Pursuant to the Child Support Standards Act ([CSSA] Domestic Relations Law '240 (1-b) [h]), a separation agreement which awards child support different from the presumptive amount mandated by statute must contain the following: (1) an acknowledgment that the parties have been advised of the substance of the CSSA; (2) a statement that the basic child support pursuant to the CSSA would presumptively result in the correct amount of child support; (3) what the CSSA basic child support would have been in the specific circumstances presented, and; (4) the reasons why the agreed upon child support deviates from that set forth in the CSSA.
Other appellate courts have adopted the same test. See Cimons v. Cimons, 53 AD3d 125 (2d Dept., 2008); supra; Matter of Usenza v. Swift, 52 AD3d 876 (3d Dept., 2008).
DRL ' 240(1-b)(h) (which is identical to FCA ' 413[1][g]) states that the aforesaid requirements may not be waived by the parties or counsel. In Cassano v. Cassano, 85 NY2d 649, 654-655 (1995), the Court of Appeals confirmed that the obligation to set forth the factors upon which the court relied in deviating from the statute is “an unbending requirement that cannot be waived by either party or counsel (citations omitted).” A child support provision that is non-compliant should be vacated and recomputed de novo pursuant to the CSSA. See, e.g., Cimons v. Cimons, supra; Matter of Usenza v. Swift, supra; Matter of Smith v. Mathis-Smith, 17 AD3d 1157 (4th Dept., 2005).
The First Department
While the First Department permits a non-compliant child support provision to be challenged by motion within the matrimonial action prior to the entry of judgment (Murphy v. Murphy, 24 AD3d 330 (1st Dept., 2005)), a child support provision contained in a settlement agreement that is incorporated into a judgment or order can only be challenged by plenary action. Marin v. Anisman, 69 AD3d 440, 892 NYS2d 390 (1st Dept., 2010), leave to appeal denied 14 NY3d 706 (2010).
In Marin v. Anisman, in which this author represented the defendant, the court declined to consider the validity of the underlying child support provision and affirmed the entry of a money judgment, noting that a non-compliant child support provision “can only be set aside by plenary action, not by motion in the divorce action.”
However, on at least one occasion, the First Department has made an exception to this rigid requirement and addressed the validity of a child support provision by motion where the lower court “retained continuing jurisdiction over matters pertaining to the terms of the parties' agreement,” “the show cause order was personally served on the plaintiff” and “the parties had a full fact-finding hearing.” Cordero v. Cordero, 200 AD2d 491 (1st Dept., 1994).
The Second Department
The rule in the Second Department is somewhat less clear; its application is at best inconsistent. In Barany v. Barany, 71 AD3d 613 (2d Dept., 2010), the court recently concluded that “the proper vehicle for challenging the propriety of child support provisions contained in a separation agreement or stipulation of settlement incorporated, but not merged, into a divorce judgment is by either commencing a separate plenary 'action in which such relief is sought in a cause of action' or by motion within the context of an enforcement proceeding (citations omitted).”
Thus, the Second Department differs from the First Department in its willingness to permit a party to challenge the propriety of a child support provision by motion within the context of an enforcement proceeding. See Barany v. Barany, supra; Fasano v. Fasano, 43 AD3d 988 (2d Dept., 2007).
Although it appears that the Second Department will permit the payor spouse to raise the invalidity of a child support provision defensively by cross motion in an enforcement proceeding, there have been inconsistent rulings with regard to whether a post-judgment motion in a matrimonial action is an acceptable vehicle for affirmatively challenging a non-compliant child support provision. (Where a party is “seeking to enforce rather than modify the terms of their stipulation of settlement which was incorporated but not merged in a judgment of divorce,” no plenary action is required. Gavin v. Catron, 35 AD3d 354 (2d Dept., 2006); see Luisi v. Luisi, 6 AD3d 398 (2d Dept., 2004). The court recently stated in Lepe v. Rodriguez, 2010 WL 1798008 (2nd Dept., 2002), that “a post-judgment motion in a matrimonial action is not the proper vehicle for challenging the propriety of child support provisions contained in a stipulation of settlement incorporated but not merged into a judgment of divorce.” (Presumably, if that application was made by cross motion within “an enforcement proceeding,” it would be proper under Barany, supra. In Chalk v. Chalk, 2010 WL 2522290 (2d Dept., 2010), the court ruled that an Order to Show Cause was not the “proper vehicle” for challenging a non-compliant child support provision holding that defendant should have cross moved “within the Family Court enforcement proceeding '” or commenced a plenary action.) However,in Zenz v. Zenz, 260 AD2d 474 (2d Dept., 1999), it permitted the payor to raise affirmatively, the invalidity of a non-compliant child support provision (contained in a stipulation incorporated into a judgment) in a post-judgment motion in the underlying matrimonial action.
The Fourth Department
The Fourth Department has long refused to enforce orders or judgments that are violative of DRL ' 240[1-b](h) or FCA ' 413(1)(h). See Matter of Smith v. Mathis-Smith, supra; Brown v. Powell, 278 AD2d 846 (4th Dept., 2000); Alleghany County Dept. of Social Services ex. rel Jennifer L.H. v. Thomas T., 273 AD2d 916 (4th Dept., 2000); Matter of Mitchell v. Mitchell, 264 AD2d 535, 538 (1999), lv denied 94 NY2d 754 (1999).
In Matter of Smith v. Mathis-Smith, the Fourth Department stated that where an order is violative of Family Court Act ' 413(1)(h), the movant is “not required to establish a basis to set aside or modify the prior order ' (since) the provisions of Family Court Act ' 413 (1)(h) may not be waived by either parent, and the failure of petitioner to contend that the prior order failed to comply with that section is of no moment (citations omitted) ' it is void ab initio, and the court was required to disregard it and to address the child support issue de novo.”
Even though the payor in Matter of Smith failed to advise the court that the child support provision was violative of the statute, the Fourth Department still addressed the issue on the merits, directing the re-computation of child support pursuant to the CSSA. The Fourth Department's refusal to recognize the validity of a non-compliant child support provision in any circumstance is evidenced by its willingness to address the issue on appeal even if the payor failed to raise the issue in the lower court. See Alleghany County Dept. of Social Services ex. rel Jennifer L.H. v. Thomas T., supra.
The Third Department
In Matter of Usenza v. Swift, the Third Department explicitly cited the Fourth Department decision in Matter of Smith v. Mathis-Smith, noting that “the omission of these statutory catechisms renders the stipulation and resulting order unenforceable (citations omitted) and consequently, the court was required to disregard it and address the support de novo (citations omitted).” Matter of Usenza v. Swift, supra at 878.
Thus, it appears that the Third Department has adopted the Fourth Department standard that a non-compliant child support provision is void ab initio. This conclusion is buttressed by the determination made on remand from the Third Department, where the court in Gannon v. Usenza, 23 Misc3d 1126(A) (Family Court, Albany County, 2009), stated: “(i)n citing favorably to Smith v. Mathis-Smith, 17 AD3d 1157 (2005), the Third Department has held a non-compliant order is void ab initio and can be challenged at any time.”
Some Analysis
The Fourth Department rule, which has been cited favorably by the Third Department, is most consistent with the specific language of the statute, which states that the provisions of DRL ' 240(1-b)(h) and Family Court Act ' 413(1)(h) may not be waived by either party or counsel. Thus, where the underlying order or judgment was never valid, re-computation of the child support obligation pursuant to the CSSA is required.
While it appears that the Second Department will permit a party to raise the invalidity of a child support provision defensively by cross motion in an enforcement proceeding, the more rigid First Department rule will not permit a party to raise the invalidity of the underlying provision (even as a defense in a post-judgment enforcement proceeding), requiring instead, that the payor commence a separate plenary action. The willingness of the First and Second departments to enter a money judgment for child support arrears based upon a non-compliant child support provision seems to contradict the clear prohibition against waiver of the statutory catechisms.
Conclusion
Although these three distinct approaches are inconsistent and contradictory, it seems unlikely that this confusion will be resolved any time soon since the Court of Appeals declined to address this issue when it denied the motion for leave to appeal in Marin v. Anisman.
Glenn S. Koopersmith practices in Garden City; he can be reached at [email protected]. He was appellate counsel for the defendant in Marin v. Anisman. This article first appeared in the New York Law Journal, an ALM sister publication of this newsletter.
The four Judicial Departments have now adopted three disparate rules of law with regard to the proper procedural course required to obtain review of a child support provision contained in a stipulation of settlement or agreement, incorporated by reference into a judgment or order, which is violative of DRL ' 240(1-b)(h) or FCA ' 413(1)(g).
While the First Department has determined that a non-compliant child support provision can only be set aside by plenary action, the Second Department has ruled that such an order can be set aside by plenary action or by motion within an enforcement proceeding; both the First and Second departments have enforced (purportedly) non-compliant child support provisions where the payor has failed to follow the specified procedural requirements.
In contrast, the Fourth Department has repeatedly ruled that a non-compliant provision is void ab initio and that the court must re-compute child support pursuant to the Child Support Standards Act (CSSA), regardless of whether the payor has requested such relief. The Third Department has cited favorably to the Fourth Department rule.
What Does the Legislation Say?
DRL '240(1-b)(h) states the following in relevant part:
(h) A validly executed agreement or stipulation voluntarily entered into between the parties after the effective date of this subdivision presented to the court for incorporation in an order or judgment shall include a provision stating that the parties have been advised of the provisions of this subdivision, and that the basic child support obligation provided for therein would presumptively result in the correct amount of child support to be awarded. 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 ' Any court order or judgment incorporating a validly executed agreement or stipulation which deviates from the basic child support obligation shall set forth the court's reasons for such deviation (emphasis added).
Pursuant to the Child Support Standards Act ([CSSA] Domestic Relations Law '240 (1-b) [h]), a separation agreement which awards child support different from the presumptive amount mandated by statute must contain the following: (1) an acknowledgment that the parties have been advised of the substance of the CSSA; (2) a statement that the basic child support pursuant to the CSSA would presumptively result in the correct amount of child support; (3) what the CSSA basic child support would have been in the specific circumstances presented, and; (4) the reasons why the agreed upon child support deviates from that set forth in the CSSA.
Other appellate courts have adopted the same test. See
DRL ' 240(1-b)(h) (which is identical to FCA ' 413[1][g]) states that the aforesaid requirements may not be waived by the parties or counsel.
The First Department
While the First Department permits a non-compliant child support provision to be challenged by motion within the matrimonial action prior to the entry of judgment (
In Marin v. Anisman, in which this author represented the defendant, the court declined to consider the validity of the underlying child support provision and affirmed the entry of a money judgment, noting that a non-compliant child support provision “can only be set aside by plenary action, not by motion in the divorce action.”
However, on at least one occasion, the First Department has made an exception to this rigid requirement and addressed the validity of a child support provision by motion where the lower court “retained continuing jurisdiction over matters pertaining to the terms of the parties' agreement,” “the show cause order was personally served on the plaintiff” and “the parties had a full fact-finding hearing.”
The Second Department
The rule in the Second Department is somewhat less clear; its application is at best inconsistent.
Thus, the Second Department differs from the First Department in its willingness to permit a party to challenge the propriety of a child support provision by motion within the context of an enforcement proceeding. See Barany v. Barany, supra;
Although it appears that the Second Department will permit the payor spouse to raise the invalidity of a child support provision defensively by cross motion in an enforcement proceeding, there have been inconsistent rulings with regard to whether a post-judgment motion in a matrimonial action is an acceptable vehicle for affirmatively challenging a non-compliant child support provision. (Where a party is “seeking to enforce rather than modify the terms of their stipulation of settlement which was incorporated but not merged in a judgment of divorce,” no plenary action is required.
The Fourth Department
The Fourth Department has long refused to enforce orders or judgments that are violative of DRL ' 240[1-b](h) or FCA ' 413(1)(h). See Matter of Smith v. Mathis-Smith, supra;
In Matter of Smith v. Mathis-Smith, the Fourth Department stated that where an order is violative of Family Court Act ' 413(1)(h), the movant is “not required to establish a basis to set aside or modify the prior order ' (since) the provisions of Family Court Act ' 413 (1)(h) may not be waived by either parent, and the failure of petitioner to contend that the prior order failed to comply with that section is of no moment (citations omitted) ' it is void ab initio, and the court was required to disregard it and to address the child support issue de novo.”
Even though the payor in Matter of Smith failed to advise the court that the child support provision was violative of the statute, the Fourth Department still addressed the issue on the merits, directing the re-computation of child support pursuant to the CSSA. The Fourth Department's refusal to recognize the validity of a non-compliant child support provision in any circumstance is evidenced by its willingness to address the issue on appeal even if the payor failed to raise the issue in the lower court. See Alleghany County Dept. of Social Services ex. rel Jennifer L.H. v. Thomas T., supra.
The Third Department
In Matter of Usenza v. Swift, the Third Department explicitly cited the Fourth Department decision in Matter of Smith v. Mathis-Smith, noting that “the omission of these statutory catechisms renders the stipulation and resulting order unenforceable (citations omitted) and consequently, the court was required to disregard it and address the support de novo (citations omitted).” Matter of Usenza v. Swift, supra at 878.
Thus, it appears that the Third Department has adopted the Fourth Department standard that a non-compliant child support provision is void ab initio. This conclusion is buttressed by the determination made on remand from the Third Department, where the court in
Some Analysis
The Fourth Department rule, which has been cited favorably by the Third Department, is most consistent with the specific language of the statute, which states that the provisions of DRL ' 240(1-b)(h) and Family Court Act ' 413(1)(h) may not be waived by either party or counsel. Thus, where the underlying order or judgment was never valid, re-computation of the child support obligation pursuant to the CSSA is required.
While it appears that the Second Department will permit a party to raise the invalidity of a child support provision defensively by cross motion in an enforcement proceeding, the more rigid First Department rule will not permit a party to raise the invalidity of the underlying provision (even as a defense in a post-judgment enforcement proceeding), requiring instead, that the payor commence a separate plenary action. The willingness of the First and Second departments to enter a money judgment for child support arrears based upon a non-compliant child support provision seems to contradict the clear prohibition against waiver of the statutory catechisms.
Conclusion
Although these three distinct approaches are inconsistent and contradictory, it seems unlikely that this confusion will be resolved any time soon since the Court of Appeals declined to address this issue when it denied the motion for leave to appeal in Marin v. Anisman.
Glenn S. Koopersmith practices in Garden City; he can be reached at [email protected]. He was appellate counsel for the defendant in Marin v. Anisman. This article first appeared in the
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