Supreme Court, Westchester County, November 30, 2017

Miller Zeiderman & Wiederkehr LLP, White Plains (Evan Wiederkehr of counsel), for defendant.

DelBello, Donnellan Weingarten Wise & Wiederkehr, LLP, White Plains (Jennifer Jill O'Hara of counsel), for plaintiff.

In this matrimonial action, defendant A.S. moves pursuant to Domestic Relations Law § 240 to vacate the child support provisions contained in the parties' postnuptial agreement dated November 21, 2016, and determine, "de novo, the parties' respective child support obligations for the parties' two unemancipated children, J. S. and B. S." (Defendant's order to show cause at 2.) In essence, defendant maintains that the agreement's child support provisions fail to comply with the strictures set forth in Domestic Relations Law § 240 (1-b) (h). Plaintiff V.S. argues that the agreement's child support terms are in substantial compliance with the statute and should therefore be upheld. For the reasons set forth herein, the court concurs with plaintiff and defendant's motion to vacate is denied.

Factual and Procedural Background

The essential underlying facts are not in dispute. The parties were married on May 21, 2006, and have two children, J., age three, and B., age one. Defendant is an attorney, employed as an in-house corporate counsel; plaintiff was, at all relevant times, employed as a building manager. When they began to experience marital problems, the parties first engaged in couples counseling; when that did not bear fruit, defendant moved from the marital residence. Such move took place in November 2015, several months before the younger child B. was born. Shortly thereafter, the parties engaged in divorce mediation, in which they were each represented by counsel.

On November 21, 2016, the parties entered into the agreement; it is undisputed that each was represented by independent counsel at the time the agreement was negotiated, executed and acknowledged. The agreement, 47 pages in length, appears to be a comprehensive postmarital agreement, resolving not only issues of child support, but, inter alia, custody and access, maintenance, equitable distribution and other requisite items. The parties recognized that the agreement would be incorporated but not merged into any judgment of divorce{**58 Misc 3d at 420} subsequently entered. (Agreement, defendant's moving aff, exhibit D at 4.) The parties surely contemplated that such a comprehensive agreement would resolve the issues between them and pave the way for an orderly divorce process. However, as the old saying goes, there is "many a slip twixt cup and lip." Several months after the agreement was signed plaintiff, in June 2017, commenced this action for divorce.

The Instant Motion

By her motion, defendant is not seeking to void the entire agreement. No claim of unconscionability, fraud, mutual mistake or overreaching is asserted; nor is defendant seeking to modify the terms of the child support provisions of it on the ground of changed circumstances. Instead, defendant seeks to vacate and then reconfigure only the child support provisions of the agreement because, she contends, the agreement does not set forth the requisite recitations prescribed in Domestic Relations Law § 240 (1-b) (h).

Domestic Relations Law § 240 (1-b) (h) provides as follows:

"(h) A validly executed agreement or stipulation voluntarily entered into between the parties after the effective date of this subdivision presented to the court for incorporation [*2]in an order or judgment shall include a provision stating that the parties have been advised of the provisions of this subdivision, and that the basic child support obligation provided for therein would presumptively result in the correct amount of child support to be awarded. In the event that such agreement or stipulation deviates from the basic child support obligation, the agreement or stipulation must specify the amount that such basic child support obligation would have been and the reason or reasons that such agreement or stipulation does not provide for payment of that amount. Such provision may not be waived by either party or counsel. Nothing contained in this subdivision shall be construed to alter the rights of the parties to voluntarily enter into validly executed agreements or stipulations which deviate from the basic child support obligation provided such agreements or stipulations comply with the provisions of this paragraph. The court shall, however, retain discretion with respect to child support pursuant to this section. Any court order or judgment incorporating a validly executed{**58 Misc 3d at 421} agreement or stipulation which deviates from the basic child support obligation shall set forth the court's reasons for such deviation."

By its terms, section 240 (1-b) (h) freely permits parties to fashion their own child support regimen even if the agreed upon terms differ from the "basic child support obligation" calculated according to the Child Support Standards Act (the CSSA). (See Rockitter v Rockitter, 113 AD3d 745 [2d Dept 2014].) This is particularly true for parties who are both represented by counsel. (See Domestic Relations Law § 240 [1-b] [i].) In order to so deviate, however, the parties' agreement must contain a series of four disclosures: (1) that the parties have been made aware of the CSSA; (2) that the parties are aware that the guidelines would result in the presumptively correct amount of support; (3) in the event the agreement deviates from the CSSA guidelines, that it recite the presumptively correct amount of support that would have obtained under such guidelines; and (4) the reasons for the deviation. (Domestic Relations Law § 240 [1-b] [h]; see Rockitter v Rockitter, 113 AD3d 745, 746 [2d Dept 2014]; Gallet v Wasserman, 280 AD2d 296, 297 [1st Dept 2001].)

Defendant effectively concedes that the agreement complies with the first, second and fourth factors set forth above, and with good reason: even a cursory examination of the agreement's child support provisions reveals that the parties each acknowledge that they were aware of the CSSA (agreement, art IV [k]), that the CSSA guidelines would result in the presumptively correct child support amount (id. art IV [r]), and that the agreement sets forth several reasons for its deviation from the guidelines amount (id. art IV [r], [s]). Instead, defendant sets her sights on the third statutory element listed above. She claims that the agreement does not precisely calculate the parties' pro rata share of the presumptively correct child support obligation on the first $143,000 of combined parental income; rather, the agreement only sets forth each parties' percentage pro rata share of the combined parental income and leaves it to the parties themselves to apply those percentages to arrive at the presumptive child support figure. (See defendant's mem at 6.) That calculation deficiency, defendant argues, is sufficient to scuttle the entire child support rubric crafted by the parties in their agreement.

Plaintiff essentially concedes that the agreement does not contain the precise calculation of the presumptive child support{**58 Misc 3d at 422} responsibility of plaintiff under the CSSA guideline amount, [*3]but maintains that since the agreement does calculate the parties' respective pro rata share of income, that precise presumptive amount can be readily ascertained by the simple mathematical exercise of applying the appropriate percentages, an exercise which defendant—by her counsel or herself, as an attorney—could have readily performed and likely did perform before signing the agreement. Plaintiff therefore contends that the agreement is in substantial compliance with Domestic Relations Law § 240 (1-b) (h), and that substantial—rather than strict compliance as urged by defendant—is all that the statute demands. An analysis of the statute and the case law applying its provisions leads the court to conclude that particularly under the circumstances that obtain herein, where both parties were represented by counsel with the complaining party an attorney in her own right, substantial compliance with the statute's notice provisions is sufficient to sustain the agreement.

Discussion and Conclusion

The issue with respect to Domestic Relations Law § 240 (1-b) (h) boils down to the question of whether the statute is primarily a notice provision or a provision of substantive law. In other words, is the statute's principal purpose to assure that the parties are aware that there is a standard protocol for calculating child support from which the parties may, but are not required to deviate? Or, on the other hand, does the statute dictate to the parties what the child support terms must be, and the precise manner in which they must be spelled out in any opt out agreement? If principally a notice statute, then substantial compliance rather than slavish adherence to its terms will undoubtedly suffice. (See Gallet v Wasserman, 280 AD2d 296 [1st Dept 2001]; Blaikie v Mortner, 274 AD2d 95 [1st Dept 2000].)

The terms of the statute as well as the manner in which such terms have been applied by the courts plainly indicate that section 240 (1-b) (h) is principally a notice provision. All of its key elements, as described above, tend toward the same overriding objective—to advise the parties that there is a standard method of child support calculation and what it entails, and that they may choose to opt out of it. Accordingly, as long as the agreement so apprises the parties, and contains sufficient information by which the child support amount under the standard formula can be readily ascertained, the primary{**58 Misc 3d at 423} purpose of the statute will be accomplished and deviation from such CSSA guidelines permitted.

The fact that section 240 (1-b) (h), by its very terms, contains an opt out provision is itself a testament to its liberating function as a notice provision which permits parties, once so informed, to fashion their own child support regimen which the courts will enforce. To that end, Domestic Relations Law § 240 (1-b) (h) should be read in conjunction with Domestic Relations Law § 236 (B) (3) validating pre- and postnuptial agreements, and the case law interpreting it which reflects a strong public policy in New York "favoring individuals ordering and deciding their own interests through contractual arrangements." (Anonymous v Anonymous, 123 AD3d 581, 582 [1st Dept 2014], quoting Matter of Greiff, 92 NY2d 341, 344 [1998]; see also Gottlieb v Gottlieb, 138 AD3d 30, 36 [1st Dept 2016]; Christian v Christian, 42 NY2d 63 [1977].) Domestic Relations Law § 240 (1-b) (h) itself reflects this policy preference: "Nothing contained in this subdivision shall be construed to alter the rights of the parties to voluntarily enter into validly executed agreements or stipulations which deviate from the basic child support obligation provided such agreements or stipulations comply with the provisions of this paragraph."

Indeed, to strike down, except in the most extreme circumstances, only one component of a pre- or postnuptial agreement—as defendant seeks to do here—would undermine the salutary purpose behind sections 236 (B) (3) and 240 (1-b) (h) to encourage and freely permit the parties to order their own affairs. This is particularly true where, as here, the provision sought to be excised appears to be integral to the entire agreement as written. In the instant case, the child support aspect of the agreement—which spans over seven pages of text—is clearly an essential part of the bargained for whole. Absent a clear violation of section 240 (1-b) (h), to strip away only one part of the agreement and thereby permit one party to cherry-pick for enforcement only certain provisions of it would subvert the parties' overall intent; put another way, if such an important aspect of the agreement is subject to renegotiation, then the entire edifice may and perhaps should crumble since the other party may only have consented to the agreement's other provisions if the child support terms were as negotiated and agreed to.

Thus to require more than substantial compliance with section 240 (1-b) (h)'s directives would undermine this overriding{**58 Misc 3d at 424} objective of encouraging the parties to freely negotiate settlement terms by allowing one of the parties to parse his or her way out of fully negotiated agreements—as, plaintiff argues, defendant seeks to do here. This is particularly portentous where, as here, both parties were represented by counsel throughout the negotiation and drafting of the agreement. Perhaps for this reason, courts have held that substantial compliance with section 240 (1-b) (h)'s terms is sufficient to enforce a freely negotiated child support settlement agreement.

For example, in the First Department case of Blaikie v Mortner (274 AD2d 95 [1st Dept 2000]), the Appellate Division upheld the child support provisions contained in the parties' separation agreement later incorporated but not merged in their judgment of divorce despite technical noncompliance with Domestic Relations Law § 240 (1-b) (h)'s exact prescriptions. Similar to the instant case, the party seeking to void the child support provisions—in Blaikie, the former husband—was an attorney. In Blaikie, the Court held that the parties' use in their agreement of the term "just and appropriate" instead of the precise word "correct" used in Domestic Relations Law § 240 (1-b) (h) in the statutory acknowledgment "that the basic child support obligation provided for therein [in the CSSA] would presumptively result in the correct amount of child support to be awarded" was a "de minimis" difference, as was the agreement's failure to specify the precise "dollars and cents" deviation of the agreement from the basic child support obligation. (Blaikie, 274 AD2d at 100-101.) As the Court stated:

"Domestic Relations Law § 240 (1-b) (h) next requires an acknowledgment 'that the basic child support obligation provided for therein would presumptively result in the correct amount of child support to be awarded' (italics added). This phrasing was included in the judgment, although, as noted above, the agreement utilized the term 'just and appropriate' rather than 'correct.' The husband contends that this omission invalidates the agreement. Under these circumstances, though, the difference is de minimis. The statutory requirement was substantially satisfied in the underlying agreement. It bears repeating that the party asserting the claim that the wrong term was used is an attorney. Curiously, the husband does not argue that the term used in the agreement ('just and appropriate') is semantically different from that required in {**58 Misc 3d at 425}the statute ('correct'). He argues, rather, that the agreement completely omitted the statutory acknowledgment. This, of course, is inaccurate. . . .

"Domestic Relations Law § 240 (1-b) (h) also requires that if the agreement 'deviates from the basic child support obligation, [it] must specify the amount that such basic child support obligation would have been and the reason . . . that [it] does not provide for payment of that amount.' As noted above, the agreement explains that there was a tradeoff in which the husband received tax benefits in exchange for paying a higher monthly amount, and also received assurances regarding private religious education. Moreover, the parties did approximate in the agreement, as [it] was reiterated in the judgment, what the approximate obligations would have been under the statute. The fact that this amount is not further broken down into dollars and cents does not persuade us, under the circumstances of this case, that the husband somehow was misled into assuming obligations greater than the statutory baseline." (Id. at 100-101 [emphasis added].)

In essence, the First Department concluded that the agreement was in substantial compliance with the statute, and that was enough. Parenthetically, it should also be noted that the Blaikie Court described the former husband's unstated but apparent purpose in a remark equally fitting herein: "[b]asically, the husband, an attorney, struck a bargain with which he is no longer satisfied, and he now parses the precise phrasing of some of the protective statutory acknowledgments as a means to invalidate an arrangement he freely and knowingly entered"—an attempt which the First Department rejected. (Blaikie, 274 AD2d at 100.)

Similarly, in Gallet v Wasserman (280 AD2d 296, 297 [1st Dept 2001]), the Appellate Division reversed the lower court and declined to void the child support provisions of the parties' separation agreement, later incorporated into their judgment of divorce, despite the failure of the agreement to precisely track the relevant statutory language. As the Court held, "[a]lthough the agreement does not specifically state that the CSSA [basic child support] would presumptively result in the correct child support, it does acknowledge that the CSSA basic child support provisions govern the parties' obligations." (Id. at 297.) {**58 Misc 3d at 426}In Wasserman as in Blaikie, the Court held in effect that substantial compliance with the statute was sufficient as long as adequate notice of its essential provisions was spelled out in the parties' agreement.

In the Second Department case of Rockitter v Rockitter (113 AD3d 745, 746 [2d Dept 2014]), the Court ruled that a settlement stipulation, placed on the record by the parties in open court and later incorporated into the judgment of divorce, adequately set forth, although "not in precise language," the reason why the parties deviated from the CSSA guidelines and was therefore in compliance with the statute. As the Court held in dismissing plaintiff's challenge to the settlement stipulation:

"In the instant matter, the parties placed the support stipulation on the record in open court and it was incorporated, but not merged, into the judgment of divorce. The defendant contends, and the Supreme Court found, that the parties articulated therein, albeit not in precise language, that the reason they were deviating from the guidelines was that the defendant was paying maintenance to the plaintiff during the period of deviation. We agree that the support stipulation was sufficient to comply with the recital requirements of the CSSA, as set forth in Domestic Relations Law § 240 (1-b) (h) (see Nocera v Nocera, 38 AD3d 510 [2007]; [*5]Lewis v Goldberg, 6 AD3d 395 [2004]; Gallet v Wasserman, 280 AD2d 296, 297 [2001]; Margaret C. v Paul F.C., 73 AD3d 567, 567 [2010])." (Id. at 746 [emphasis added]; see also Margaret C. v Paul F.C., 73 AD3d 567, 567 [1st Dept 2010] ["The stipulation satisfies the requirement of Domestic Relations Law § 240 (1-b) (h) that it specify the parties' reasons for deviating from the guidelines of the Child Support Standards Act by stating that the parties 'consider' its provisions relating to child support 'to be fair and reasonable, based on many considerations,' including their respective finances and the stipulation's other financial provisions, which were clearly articulated"]; Nocera v Nocera, 38 AD3d 510 [2d Dept 2007].)

The cases relied upon by defendant are inapposite since they address a situation not present here—a situation of an abject and total failure to give any notice of either all or an essential{**58 Misc 3d at 427} statutory component. (See e.g. David v Cruz, 103 AD3d 494, 494 [1st Dept 2013] ["Here, both the settlement agreement and the subject order effectuating it failed to recite that the parties were aware of the CSSA guidelines, failed to set forth the basic child support obligation, and failed to set forth the reasons for deviating from the guidelines"], and Zenz v Zenz, 260 AD2d 474 [2d Dept 1999], cited at defendant's mem at 4-5.)

Thus, the practical import of the case law applying Domestic Relations Law § 240 (1-b) (h) is clear: as long as the parties, in their agreement, substantially adhere to the statutory notice provisions, their voluntary effort to deviate from the strictures of the CSSA guidelines will be respected and enforced. In the instant case, as in Blaikie and Rockitter and unlike Cruz and Zenz, the parties' agreement more than substantially complied with the statute. And here, as in Blaikie, Wasserman and Rockitter, the fundamental purpose of the statute was satisfied, albeit absent the precise language contained in it, by clearly advising the parties of the CSSA alternative to their privately negotiated child support terms. The parties, both represented by able counsel, properly recited in their 47 page agreement—over seven pages of which are devoted to child support alone—their acknowledgment of the CSSA guidelines, the several reasons why they elected to deviate from the guidelines, and the calculation of child support percentages.

The fact that defendant—an attorney in her own right—may need to employ a calculator to apply such percentages to arrive at exact dollar amounts is of no moment. To hold otherwise would be to engage in an exercise in nit-picking aimed solely at the disfavored objective of, in the words of the Blaikie Court, "invalidat[ing] an arrangement [defendant] freely and knowingly entered." (Blaikie, 274 AD2d at 100.) Put simply, the agreement by its terms sufficiently reflects that the parties were made aware of the statutory prescriptions. That is, the agreement adequately informed the parties of the CSSA guidelines, and thus fulfilled the notice-oriented purpose underlying the statute. Section 240 (1-b) (h) has thereby been satisfied, and both parties must live with the consequences of their freely negotiated, executed and acknowledged postnuptial agreement, including the child support terms contained in it.

Accordingly, defendant's motion to vacate the child support provisions contained in the agreement is denied in all respects.