Cohen v Cohen

[*1] Cohen v Cohen 2005 NY Slip Op 51832(U) [9 Misc 3d 1128(A)] Decided on October 27, 2005 Supreme Court, Nassau County Spinola, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on October 27, 2005
Supreme Court, Nassau County

Cathy Cohen, Plaintiff

against

Adam Cohen, Defendant



05-001611

Joseph P. Spinola, J.

Plaintiff moves for partial summary judgment pursuant to CPLR §3212(e) as to plaintiff's first cause of action seeking vacatur of the child support provisions of the parties' Separation Agreement dated October 22, 1996, same which was incorporated but not merged into the Judgment of Divorce dated August 21, 1997. Should such relief be granted, plaintiff further seeks an Order directing a de novo hearing to determine defendant's child support obligation pursuant to the Child Support Standards Act (hereinafter the CSSA).

In or about October 22, 1996, the parties, both represented by independent counsel, executed a Separation Agreement, same which resolved all issues with respect to distribution and division of assets and debt and maintenance and child support. The agreement was ultimately incorporated but not merged into the Judgment of Divorce dated August 21, 1997.

The provision of the Judgment of Divorce concerning defendant's child support obligation fails to include provisions stating that the parties had been apprised of their rights under the CSSA, the amount that would have been awarded under the CSSA and the reason for deviating from the CSSA amount. Accordingly, it is plaintiff's position that the child support provisions of the Separation Agreement, same which was incorporated but not merged into the Judgment of Divorce, are invalid and unenforceable.

DRL §240 (subd.1-b)(h) expressly provides that an agreement or stipulation between the parties must include a provision stating that the parties were advised of the provisions of the CSSA and that the basic amount of child support provided for in the CSSA would presumptively result in the correct amount of child support to be awarded. Further, if the agreement or stipulation provides for a different child support than the CSSA would provide for, the agreement or stipulation must set forth the amount that the basic child support obligation would have been and the reasons why the parties did not provide for the CSSA amount in their agreement or stipulation. Separation "agreements" are agreements within the statute. (DRL §240 (subd.1-b[*2])(h); Tartaglia v. Tartaglia, 260 AD2d 628 [2d Dept. 1999]).

Where, as in the instant matter, the agreement fails to comply with the statutory mandate of DRL §240 (subd.1-b)(h), the child support provisions are invalid and unenforceable. (Phillips v. Phillips, 245 AD2d 457 [2d Dept. 1997]; Tartaglia v. Tartaglia, 260 AD2d 628 [2d Dept. 1999]; Tolchin v. Freeman, 275 AD2d 452 [2d Dept. 2000]; Commentaries, McKinney's Cons. Laws of NY, Book14, Domestic Relations Law C240:27, 1999). Accordingly, plaintiff's motion is granted to the extent that the child support provisions of Separation Agreement dated October 22, 1996, same which was incorporated but not merged into the Judgment of Divorce dated August 21, 1997 are vacated.

However, it is evident from the four corners of the agreement that defendant's child support obligation was negotiated with the plaintiff at arms length without any fraudulent influences. The Court notes that it has been nine years since the agreement was executed and plaintiff acquiesced in its terms and failed to challenge its validity prior to the instant motion. Nevertheless, the Court is constrained by the law to vacate the child support provisions of the agreement. Accordingly, in the interests of equity and fairness, the amount of defendant's child support obligation shall be established to comply with the CSSA based upon defendant's income as it was in 1996, the date the agreement was executed.

The parties and their respective counsel are to appear before the undersigned Justice on December 2, 2005 at 9:30am for a conference at which time defendant will bring with him proof of his income as it was in 1996. If plaintiff chooses to seek a child support award for an amount based upon defendant's current income, same which is greater than his income as it existed in 1996, plaintiff will have the burden, at a hearing, to demonstrate that there was an unforseen substantial change in circumstances and a concomitant showing of need.

Plaintiff's motion is denied in all other respects.

This constitutes the decision and order of the Court.

E N T E R:

_________________________

Joseph P. Spinola, Justice

Supreme Court, Nassau County

Dated: October 27, 2005

Mineola, NY