| Sullivan v Sullivan |
| 2007 NY Slip Op 10015 [46 AD3d 1195] |
| December 20, 2007 |
| Appellate Division, Third Department |
| Christina Chant Sullivan, Respondent, v Steven Calvert Sullivan,Appellant. |
—[*1] Mullaney & Mullaney, Saratoga Springs (Eleanor K. Mullaney of counsel), forrespondent.
Peters, J. Appeal from an order of the Supreme Court (Hall, J.), entered June 20, 2007 inSaratoga County, which, among other things, denied defendant's cross motion to declare voidcertain provisions in the parties' settlement agreement.
In October 2004, the parties executed a settlement agreement which was thereafterincorporated, but not merged, into a February 2005 judgment of divorce. When plaintiff movedto, among other things, collect arrearages emanating from the maintenance and child supportprovisions of that agreement, defendant cross-moved to have those provisions declared void.After a hearing, Supreme Court granted plaintiff's motion and denied defendant's cross motion.Defendant only appeals that portion of the order which failed to vacate the child supportprovisions in both the settlement agreement and judgment of divorce.
Defendant's recent challenge to the settlement agreement based upon his pro se status is notproperly before this Court (see Matter ofDi Maio [Commissioner of Labor], 12 AD3d 756, 758 [2004]). In any event, "that aparty is not represented by an attorney in connection with the negotiation and execution of aseparation agreement is not fatal to its enforceability, especially where that party makes aconscious decision not to seek the assistance of counsel" (Croote-Fluno v Fluno, 289AD2d 669, 671 [2001]; see Lavelle v Lavelle, 187 AD2d 912, 912 [1992]). As the partiesacknowledged multiple times in the settlement agreement that they were given an [*2]opportunity to have separate counsel review and advise them oftheir respective legal rights, defendant's choice not to consult any attorney before executing theagreement does not undermine its validity.
Next reviewing its challenged provisions, the agreement clearly indicates that the partieswere advised of the Child Support Standards Act (hereinafter CSSA), the presumptive amountwhich would be awarded thereunder, albeit miscalculated (see Domestic Relations Law§ 240 [1-b] [h]), and the reasons why the parties sought to deviate therefrom (seeFessenden v Fessenden, 307 AD2d 444, 445 [2003]; Lounsbury v Lounsbury, 300AD2d 812, 816 [2002]). While we agree that an omission of the nonwaivable statutoryrequirements would render the agreement void (see Fessenden v Fessenden, 307 AD2d at445; Blaikie v Mortner, 274 AD2d 95, 100 [2000]; Matter of Mitchell v Mitchell,264 AD2d 535, 538 [1999], lv denied 94 NY2d 754 [1999]; Matter of Sievers vEstelle, 211 AD2d 173, 175-176 [1995]), where, as here, each and every other statutoryrequirement is met, yet the basic child support obligation from which the deviation is sought isstated but miscalculated, that alone may not be enough to invalidate the agreement (see Tremont v Tremont, 35 AD3d1046, 1048-1049 [2006]; Echeverri v Echeverri, 278 AD2d 130, 131 [2000]).
Despite defendant's failure to correct the error for approximately 2½ years, it is clearthat the error emanated from the parties' failure to deduct the agreed upon maintenance fromdefendant's income prior to the calculation under the CSSA (see Domestic Relations Law§ 240 [1-b] [b] [5] [vii] [C]). Such error resulted in defendant's agreement to pay childsupport in the amount of $1,500 when the presumptively correct CSSA amount would have been$1,548. With the settlement agreement further providing that there will never be any upwardmodification of child support, only a downward modification based upon defendant's income,and that all of the enumerated tax benefits would enure to defendant, despite the fact that theywould have been properly credited to plaintiff, we find no basis upon which we would void theotherwise valid child support provisions in the settlement agreement. Moreover, with SupremeCourt having stated its reasons for allowing the deviation in its decision supporting the issuanceof the judgment of divorce on the same date when it permitted the incorporation of the parties'agreement in the action for divorce, there is no viable challenge to such judgment (seeDomestic Relations Law § 240 [1-b] [h]). As defendant's remaining contention regarding apresumptive award of counsel fees is not properly before us, we affirm.
Crew III, J.P., Spain, Carpinello and Mugglin, JJ., concur. Ordered that the order is affirmed,without costs.