New York Supreme and/or Appellate Courts Appellate Division, First Department
February 19, 2013
WILLIAM DAVID, PLAINTIFF-APPELLANT,
ONILDA CRUZ, DEFENDANT-RESPONDENT.
David v Cruz
Decided on February 19, 2013
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
Friedman, J.P., Acosta, Renwick, Richter, Roman, JJ.
Order, Supreme Court, Bronx County (Mark Friedlander, J.), entered on or about August 10, 2011, which, insofar as appealed from, upon renewal of plaintiff's cross motion to enforce a settlement agreement, partially granted the cross motion, unanimously reversed, on the law, without costs, and the cross motion denied in its entirety.
An agreement purporting to opt out of the basic child support obligations set forth in the Child Support Standards Act (CSSA) must "include a provision stating that the parties have been advised of the provisions of [the CSSA]," must specify the amount that the basic child support obligation would have been, and the reason or reasons for the deviation (Family Court Act § 413[h]; Domestic Relations Law § 240[1-b][h]; see Baranek v Baranek, 54 AD3d 789 [2d Dept 2008], lv dismissed 14 NY3d 903 ).
"Such provision may not be waived by either party or counsel" (Family Court Act § 413[h]; Domestic Relations Law § 240[1-b][h]; see Blaikie v Mortner, 274 AD2d 95, 99-101 [1st Dept 2000]; Matter of Burnside v Somerville, 202 AD2d 1064 [4th Dept 1994]).
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 (see Family Court Act § 413[h]; Domestic Relations Law § 240[1-b][h]; Baranek, 54 AD3d at 790-791; Matter of Michelle W. v Forrest James P., 218 AD2d 175 [4th Dept 1996]).
Although the invalidity of a child support provision does not necessarily invalidate the agreement in its entirety (see e.g. Cimons v Cimons, 53 AD3d 125, 129 [2d Dept 2008]), the agreement at issue cannot be salvaged by deeming it divisible for partial illegality and severing and enforcing the provisions that do not pertain to child support. The provisions pertaining to child support constituted the main objective of the agreement, or the bargained-for consideration inducing defendant to agree to the remainder of the agreement, including the injunctive provisions (see e.g. Georgia Props., Inc. v Dalsimer, 39 AD3d 332, 334 [1st Dept 2005]; cf. Baranek, 54 AD3d at 791).
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: FEBRUARY 19, 2013
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