| McCarthy v McCarthy |
| 2010 NY Slip Op 07448 [77 AD3d 1119] |
| October 21, 2010 |
| Appellate Division, Third Department |
| Kimberly C. McCarthy, Respondent, v Christopher A. McCarthy,Appellant. In the Matter of Kimberly C. McCarthy, Respondent, v Christopher A.McCarthy, Appellant. |
—[*1]
Peters, J.P. Appeals (1) from an order of the Supreme Court (Powers, J.), entered March 31,2009 in Schenectady County, which, among other things, denied defendant's motion to vacate astipulation of settlement, and (2) from an order of the Family Court of Schenectady County(Powers, J.), entered September 1, 2009, which, among other things, granted petitioner'sapplication, in a proceeding pursuant to Family Ct Act article 4, to direct respondent to pay childsupport.
The parties were married in 1996, had two children together (born in 1996 and 1998) andwere divorced in 2006. An oral stipulation that was incorporated into the judgment of divorceprovided, among other things, that the father would pay weekly child support in the amount of$125, except during the children's summer vacation, and that the parties would equally shareexpenses for clothing (up to $1,000 per child each year), extracurricular activities, summer daycare, health insurance and uncovered medical expenses. After the father failed to make thepayments required by the child support provisions of that agreement, the mother commenced aproceeding to collect arrearages. The father answered and interposed a cross claim alleging that[*2]the stipulation was void because it failed to comply with theChild Support Standards Act (see Domestic Relations Law § 240 [1-b] [hereinafterCSSA]). The father then moved, by order to show cause, to vacate the child support provisions ofthe stipulation. Upon transfer of the motion to Supreme Court (Powers, J.), the father's motionwas denied. Following a trial on the mother's application, a Support Magistrate found that thefather owed $4,551.04 in arrears, but that his violation was not willful. Family Court (Powers, J.)denied the father's objections and confirmed the Support Magistrate's determination. The fathernow appeals from both orders.
The principal argument advanced by the father is that the stipulation is invalid andunenforceable because it fails to comply with the CSSA. That statute requires that all childsupport stipulations contain a provision that the parties have been advised of the provisions of theCSSA and that application of the CSSA would "presumptively result in the correct amount ofchild support to be awarded" (Domestic Relations Law § 240 [1-b] [h]). If the stipulationdeviates from the presumptively correct amount that would have been awarded under the CSSA,it must also specify what that amount would have been and the reason or reasons for thedeviation therefrom (see Domestic Relations Law § 240 [1-b] [h]).
Here, the parties' oral stipulation, as well as an executed written affidavit of appearance andadoption of oral stipulation and opt-out agreement, set forth that the parties received, reviewedand fully understood the child support provisions of the CSSA and had been advised that theapplication of the statute would result in the presumptively correct amount of child support to beawarded. The stipulation then recites the presumptive amount of child support under the CSSAand the agreed-upon figures used to calculate that amount, states that the parties are deviatingfrom the presumptive amount and explains the reasons for the deviation therefrom. The fatherhas failed to show that the presumptive amount of child support set forth in thestipulation—which he explicitly agreed to—was miscalculated. In any event,inasmuch as each and every other statutory requirement has been met, any purportedmiscalculation of the father's basic child support obligation would not, under thesecircumstances, serve to invalidate the stipulation (see Sullivan v Sullivan, 46 AD3d 1195, 1196-1197 [2007]; Tremont v Tremont, 35 AD3d1046, 1047-1048 [2006]; Echeverri v Echeverri, 278 AD2d 130, 131 [2000]; compare Cheruvu v Cheruvu, 59 AD3d876, 879 [2009]; Matter of Usenzav Swift, 52 AD3d 876, 878 [2008]). Accordingly, we conclude that the opt-outprovisions of the stipulation are valid and enforceable.
The father also contends that he did not knowingly and voluntarily agree to pay 50% of thechildren's clothing, extracurricular activities, summer day care, health insurance and uncoveredmedical expenses. "A stipulation of settlement which is made in open court by parties who arerepresented by counsel and who unequivocally agree to its terms will not be set aside absent ashowing that the stipulation was tainted by mistake, fraud, duress, overreaching orunconscionability" (Fox v Merriman, 307 AD2d 685, 686 [2003] [citations omitted]; accord Matter of Crouse v Crouse, 53AD3d 750, 753 [2008]). The stipulation here was made by the parties in open court afterconsultation with their attorneys, and the father unequivocally indicated his agreement with itsterms. The father's assertion that his attorney led him to believe that he was statutorily required tomake these additional payments is unsupported by and inconsistent with the record (see Kalra v Kalra, 57 AD3d 947,947 [2008]; Fox v Merriman, 307 AD2d at 686).
The father's remaining contentions, to the extent not addressed herein, have been fullyexamined and found to be without merit.[*3]
Rose, Lahtinen, McCarthy and Garry, JJ., concur.Ordered that the orders are affirmed, without costs.