Cimons v. Cimons

• Decision Date: 17 June 2008
• Docket Number: No. 2006-09988,2006-09988
• Parties: CAROLINE CIMONS, Respondent, v. WAYNE CIMONS, Appellant.
• Court: New York Supreme Court — Appellate Division

53 A.D.3d 125

861 N.Y.S.2d 88

2008 NY Slip Op 5642

CAROLINE CIMONS, Respondent, v. WAYNE CIMONS, Appellant.

No. 2006-09988

Appellate Division of the Supreme Court of the State of New York, Second Department.

June 17, 2008.

Goldschmidt & Genovese, LLP, White Plains (Rhona M. Bork of counsel), for appellant.

Candi J. Fulop, White Plains (Therese R. Malach of counsel), for respondent.

OPINION OF THE COURT

ANGIOLILLO, J.

This appeal requires us to determine whether a provision in a stipulation settling a divorce action that sets forth the parties' obligations to provide for the future college expenses of their children is subject to the Child Support Standards Act (hereinafter the CSSA) and, if not, whether that provision nonetheless survives a determination that the basic child support provisions of the stipulation violate the CSSA. We hold that, under the circumstances presented here, the obligation to provide for the future college expenses of the children is not part of the parties' basic child support obligation and therefore is not subject to the CSSA requirement that any deviation from statutorily-mandated child support obligations must be recited and explained in a stipulation of settlement. Moreover, even though the parties violated the CSSA by failing to recite and explain in their stipulation why they deviated from CSSA standards in providing basic child support, and the basic child support provisions were properly vacated as a consequence, the provision concerning future college expenses survives the vacatur, and is enforceable. Accordingly, we affirm the order of the Supreme Court insofar as appealed from.

The parties entered into a stipulation of settlement (hereinafter the stipulation), set forth on the record at a hearing on May 31, 2006, which was subsequently incorporated but not merged in a judgment of separation. Subsequent to the entry of the judgment, the father moved to vacate the child support and related provisions of the stipulation, alleging that the stipulation failed to comply with the "opt-out/deviation" provisions of the CSSA contained in Domestic Relations Law § 240 (1-b) (h). The Supreme Court determined, in effect, that the parties' agreement deviated from the provisions of the CSSA with regard to the calculation of "basic child support." Since the parties failed to comply with the provisions of Domestic Relations Law § 240 (1-b) (h), those basic child support provisions are not enforceable, and the Supreme Court vacated those provisions of the parties' stipulation relating to their basic child support obligation for their three children, ultimately scheduling a hearing for a calculation of basic child support pursuant to the CSSA. The Supreme Court, however, denied that branch of the father's motion which was to vacate the separate provisions of the stipulation that related to the parties' agreement to provide for their children's future college expenses, and the father appeals.

A parent has an obligation to provide support for his or her child's basic needs, an obligation which is addressed in Domestic Relations Law § 240 (1-b) (c) (1), (2). Unlike that basic obligation, support for a child's college education is not mandatory. Absent a voluntary agreement, a parent might be required to provide support for his or her child's attendance at college, but the determination of that obligation is dependent upon the exercise of the court's discretion in accordance with Domestic Relations Law § 240 (1-b) (c) (7) (see Matter of Poznik v Froebel, 1 AD3d 366 [2003]; Miller v Miller, 299 AD2d 463 [2002]).

Domestic Relations Law § 240 (1-b) (h) requires that any agreement or stipulation voluntarily entered into between the parties, and presented to the court for incorporation in an order or judgment, must include provisions: (1) stating that the parties have been advised of the provisions of the CSSA; (2) stating that the basic child support provisions of the CSSA would presumptively result in the determination of the correct amount of child support to be awarded; (3) stating what the amount of basic child support would have been if calculated pursuant to the CSSA, if the parties' stipulation or agreement deviates from the basic child support obligation; and (4) setting forth the parties' reason or reasons for deviating from the CSSA calculation, if they have chosen to deviate. The requirements of Domestic Relations Law § 240 (1-b) (h) may not be waived by either party or by counsel.

The primary components of the CSSA were enacted pursuant to Laws of 1989 (ch 567, § 7). The present version of Domestic Relations Law § 240 (1-b) (h), regarding the necessity of including these specific provisions in stipulations when the parties opt out or deviate from the CSSA, was enacted pursuant to Laws of 1992 (ch 41, § 146). Paragraph (h) of Domestic Relations Law § 240 (1-b) was a small part of a comprehensive Medicaid reform bill, and there are no memoranda addressed to paragraph (h) in the relevant legislative history.

The legislative history, however, does include a Memorandum of the State Executive Department relating to the enactment of the CSSA (1989 McKinney's Session Laws of NY, at 2208 et seq.). The basic premises underlying the statute are that

"[b]oth parents have a responsibility to contribute to the economic well-being of their children ...

"[c]hildren should not unfairly bear the economic burden of parental separation [and] ... [c]hildren should be protected as much as possible from the overall decline in living standards that results from parents maintaining two households" (Mem of St Exec Dept, 1989 McKinney's Session Laws of NY, at 2208).

The memorandum explained that the bill, inter alia:

"(c) [c]reates a step-by-step child support methodology, which includes use of a child support percentage (based upon number of children), to arrive at the basic child support obligation of the parents ... [and]

"(d) [r]equires consideration as a part of the basic child support obligation, of the custodial parent's present and future child care needs when the custodial parent is working, or receiving ... education ... Reasonable child care expenses are to be prorated in the same proportion as each parent's income is to the total parental income" (Mem of St Exec Dept, 1989 McKinney's Session Laws of NY, at 2209).

The memorandum further indicated there were three reasons why child care expenses were set out as a distinct element: (1) they are a large variable expense that occurs only in some circumstances; (2) when such expenses are incurred they can represent an inordinate proportion of the cost of raising a child; and (3) the burden of child care expenses can be a disincentive for a custodial parent to seek employment.

In contrast to the add-ons for child care expenses and future reasonable health care expenses, which must be awarded and prorated in the same proportion or percentage as each parent's income bears to the combined parental income, the add-on for educational expenses is within the court's discretion, both as to whether an award of such expenses is to be made in the first instance, and the parties' share of any amount awarded. Specifically, Domestic Relations Law § 240 (1-b) (c) (7) reads:

"Where the court determines, having regard for the circumstances of the case and of the respective parties and in the best interests of the child, and as justice requires, that the present or future provision of post-secondary, private, special, or enriched education for the child is appropriate, the court may award educational expenses. The non-custodial parent shall pay educational expenses, as awarded, in a manner determined by the court, including direct payment to the educational provider" (emphasis added).

Where the parties' stipulation or agreement fails to comply with the requirements of Domestic Relations Law § 240 (1-b) (h), it is fundamental that the basic child support provisions of the agreement are invalid and cannot be enforced. That portion of the agreement must be set aside and the parties' basic child support obligation must be recalculated through the application of the CSSA (see Calian v Calian, 28 AD3d 506 [2006]; Warnecke v Warnecke, 12 AD3d 502 [2004]).

Nonetheless, the invalidity of the basic child support obligation, due to a deviation from the CSSA standards without full compliance with Domestic Relations Law § 240 (1-b) (h), does not necessarily require that the entire stipulation be vacated. That a portion of an agreement may be invalid and unenforceable does not necessarily preclude the enforcement of other portions of an agreement (see Fasano v Fasano, 43 AD3d 988 [2007]; Toussaint v Toussaint, 270 AD2d 338 [2000]). Thus, as the Court of Appeals held in Ferro v Bologna (31 NY2d 30 [1972]), the invalidity of an aspect of a separation agreement which relieved a husband and father of any obligation to support his wife and children, due to its contravention of statutory provisions, did not preclude the enforcement of a separate part of the agreement by which he obligated himself to make his children the beneficiaries of a life insurance policy (see also Conteh v Majestic Farms, 292 AD2d 485 [2002]; Donnell v Stogel, 161 AD2d 93 [1990]).

The determination as to which additional aspects, if any, of the parties' stipulation must be vacated along with the basic child support provision depends on the circumstances of the particular case and the nature of the obligations addressed in the other provisions of a stipulation. Some provisions may be so directly connected or intertwined with the basic child support obligation that they necessarily must be recalculated along with the basic support obligation.

Part of the problem in differentiating among and between the different obligations is the language utilized in the statute. As used in the Domestic Relations Law,

"`[b]asic child support obligation' shall mean the sum derived by adding the amounts determined by...