ROSENBERG v. ERBER

ORDERED that the order is modified, on the law and the facts, by (1) deleting the provision thereof granting the plaintiff leave to enter judgment against the defendant in the sum of $48,550, and substituting therefor a provision granting the plaintiff leave to enter judgment against the defendant in the sum of $48,077.50, (2) deleting the provision thereof awarding the plaintiff an attorney's fee of $2,000, and (3) deleting the provision thereof denying that branch of the cross motion which was for an award of $100 pursuant to CPLR 5020(c), and substituting therefor a provision granting that branch of the cross motion; as so modified, the order is affirmed, with costs to the defendant, and the matter is remitted to the Supreme Court, Nassau County, for a hearing on the issue of the amount of the attorney's fee, if any, to be awarded to the plaintiff.

The record supports the Supreme Court's determination that the parties were aware of their rights and obligations pursuant to the Child Support Standards Act (hereinafter the CSSA) as in effect at the time they entered into their stipulation in 1991 (see, former Domestic Relations Law § 240[1-b][h], L 1989, ch 567, § 7; Gonsalves v. Gonsalves, 212 A.D.2d 932; Matter of Clark v. Clark, 198 A.D.2d 599; Sloam v. Sloam, 185 A.D.2d 808; cf., LePore v. LePore, 276 A.D.2d 677). Thus, contrary to the defendant's contention, the parties' decision to "opt-out" of the provisions of the CSSA was knowingly made and is enforceable (see, Seda v. Seda, 270 A.D.2d 475).

Moreover, the on-the-record, in-court stipulation is not infirm for want of a written acknowledgment (see, Natole v. Natole, 256 A.D.2d 558). The Supreme Court correctly determined that the defendant failed to establish a change of circumstances warranting a downward modification of his child support obligation (see, Matter of Habib v. Habib, 269 A.D.2d 447; Matter of Yeager v. Yeager, 266 A.D.2d 223).

The Supreme Court, however, erred in failing to reduce the amount of arrears owed by the defendant by $472.50. The defendant was entitled to a credit for the 1999 school year since it was agreed that his child support obligation was to be reduced by 30% while Daniel, the only unemancipated child at the time, was away at college. The defendant was not, however, entitled to a credit for the 1998 school year since the evidence demonstrated that the child was on a year-abroad program in Israel and the defendant agreed to pay all of the costs related to this trip. Furthermore, the court erred in awarding an attorney's fee to the plaintiff without a hearing to determine the extent and value of the services rendered (see, Ott v. Ott, 266 A.D.2d 842).

Finally, we agree with the defendant that he was entitled to a $100 civil penalty payable by the plaintiff pursuant to CPLR 5020(c).