| Fasano v Fasano |
| 2007 NY Slip Op 06827 [43 AD3d 988] |
| September 18, 2007 |
| Appellate Division, Second Department |
| Ralph J. Fasano, Appellant, v Theresa L. Fasano,Respondent. |
—[*1] Moran, Brodrick & Elliot, Garden City, N.Y. (Thomas A. Elliot of counsel), forrespondent.
In a matrimonial action in which the parties were divorced by judgment dated February 17,1994, the plaintiff appeals, as limited by his brief, from so much of an order of the SupremeCourt, Nassau County (Ross, J.), dated April 11, 2005, as denied his cross motion, inter alia, ineffect, to set aside the child support provisions of the parties' separation agreement dated October21, 1993, as invalid and unenforceable for failure to comply with Domestic Relations Law§ 240 (1-b) (h).
Ordered that the order is modified, on the law, by deleting the provision thereof denying thatbranch of the plaintiff's cross motion which was, in effect, to set aside paragraph 5, article F ofthe parties' separation agreement dated October 21, 1993, pertaining to cost of living increases inhis child support obligation, as invalid and unenforceable for failure to comply with DomesticRelations Law § 240 (1-b) (h), and substituting therefor a provision granting that branch ofthe cross motion; as so modified, the order is affirmed insofar as appealed from, with costs to thedefendant.
In a separation agreement dated October 21, 1993, the parties agreed, inter alia, that untilOctober 31, 1996, the plaintiff would pay the defendant maintenance in the sum of $5,416.66 permonth and child support in the sum of $833.33 per month. After October 31, 1996, the plaintiff'smaintenance obligation would end and his monthly child support obligation would increase tothe sum of $3,333.33. The child support provisions of the separation agreement also obligatedthe plaintiff to pay increased child support in the event of increases in the cost of living, [*2]as reflected in the consumer price index for the New YorkMetropolitan area. The separation agreement was incorporated, but not merged, into thejudgment of divorce dated February 17, 1994.
Contrary to the plaintiff's contention, the child support provisions are not invalid on theground that they fail to state, as required by Domestic Relations Law § 240 (1-b) (h), thatthe basic child support obligation as defined in Domestic Relations Law § 240 (1-b) wouldpresumptively result in the correct amount of child support to be awarded. The requisite languagewas contained in the separation agreement and, in any event, was also set forth in the judgmentof divorce (see Gallet v Wasserman, 280 AD2d 296, 297 [2001]).
Moreover, the child support provision which sets the plaintiff's child support obligation at thesum of $3,333.33 per month is not, as he contends, invalid on the ground that it fails to calculatethe presumptively correct amount of child support pursuant to the Child Support Standards Act(hereinafter the CSSA). A provision stating the correct amount of the basic child supportobligation under the CSSA is not required unless it is apparent that the parties have "opted out"of the basic child support obligation pursuant to the CSSA (see Domestic Relations Law§ 240 [1-b] [h]; Matter ofHuddleston v Huddleston, 14 AD3d 511, 512 [2005]; Pellot v Pellot, 305 AD2d478, 480 [2003]). Here, the child support obligation in the sum of $3,333.33 per month did notdiffer significantly from the correct amount as calculated by a strict application of the statute, andthus, such provision in the separation agreement cannot reasonably be interpreted as indicatingthat the parties intended to "opt out" of the basic child support obligation pursuant to the CSSA(see Pellot v Pellot, 305 AD2d 478, 480 [2003]).
However, the plaintiff correctly contends that the provision contained in paragraph 5, articleF of the separation agreement, allowing for adjustments to his monthly child support obligationbased on cost of living increases (hereinafter the COLA provision), fails to comply withDomestic Relations Law § 240 (1-b) (h). The annual increases in the child supportobligation permitted under the COLA provision represent potential deviations from the basicchild support obligation (see Domestic Relations Law § 240 [1-b] [c] [2], [3]) and,therefore, can be interpreted as providing for an "opting out" of the CSSA guidelines (cf.Pellot v Pellot, 305 AD2d 478, 480 [2003]). Since the separation agreement fails to state theparties' reasons for deviating from the CSSA guidelines with respect to the potential COLAincreases, the COLA provision violates Domestic Relations Law § 240 (1-b) (h) andshould have been set aside (see Calian vCalian, 28 AD3d 506, 507 [2006]; Lepore v Lepore, 276 AD2d 677, 678[2000]). Schmidt, J.P., Santucci, Krausman and McCarthy, JJ., concur.