LEPORE v. LEPORE, N.Y. App. Div., Judgment, Law, casemine.com

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Attorney(S)

Donald R. Sallah and Associates, Holtsville, N.Y. (Dean J. Sallah of counsel), for appellant . Horn Horn, Huntington, N.Y. (Jeffrey S. Horn of counsel), for respondent.

Judges

Robert J. Miller

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Smart Summary

Factual and Procedural Background

This appeal arises from an action for divorce and ancillary relief. The plaintiff wife (appellant) appealed from an order of the Supreme Court, Suffolk County (Baisley, J.), dated February 17, 2000, which denied her motion to vacate the child support provisions of the parties' stipulation of settlement on the ground that the stipulation did not comply with Domestic Relations Law § 240(1-b)(h). The parties' stipulation of settlement had been set forth on the record at a hearing on July 28, 1999. The Supreme Court denied the plaintiff's motion on the basis that it found the plaintiff was aware of the Child Support Standards Act (CSSA) when she entered into the stipulation. The Appellate Division modified the order to vacate certain provisions and remitted the matter to the Supreme Court for further determinations.

Legal Issues Presented

Whether the parties' stipulation of settlement complied with Domestic Relations Law § 240(1-b)(h) such that its child support provisions are enforceable.
Whether, because of noncompliance with § 240(1-b)(h), the child support provisions (and related provisions for maintenance and financial obligations for college and automobile expenses) must be vacated and the matter remitted for determination in accordance with the CSSA and for de novo determinations.

Arguments of the Parties

Appellant's Arguments

The appellant moved to vacate the child support provisions of the parties' stipulation on the ground that the stipulation did not comply with Domestic Relations Law § 240(1-b)(h) (i.e., did not contain the required recitals concerning the CSSA, the presumptive support amount, and reasons for any departure from the guidelines).

The opinion does not contain a detailed account of the respondent's legal arguments.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Sloam v. Sloam, 185 A.D.2d 808	Illustration that a party's awareness of the CSSA is not the dispositive consideration under the statute.	Cited to support the proposition that awareness alone does not satisfy § 240(1-b)(h).
Appel v. Appel, 241 A.D.2d 470	Related authority on CSSA compliance requirements.	Included among authorities showing awareness is not dispositive and recitals are required.
Maser v. Maser, 226 A.D.2d 684	Related authority on CSSA compliance requirements.	Included among authorities showing awareness is not dispositive and recitals are required.
Gonsalves v. Gonsalves, 212 A.D.2d 932	Related authority on CSSA compliance requirements.	Included among authorities showing awareness is not dispositive and recitals are required.
Matter of Clark v. Clark, 198 A.D.2d 599	Related authority on CSSA compliance requirements.	Included among authorities showing awareness is not dispositive and recitals are required.
Tolchin v. Freeman, 275 A.D.2d 452	Authority holding that child support provisions not compliant with statute are unenforceable.	Cited for the proposition that child support provisions not meeting § 240(1-b)(h) must be vacated.
Toussaint v. Toussaint, 270 A.D.2d 338	Authority holding that child support provisions not compliant with statute are unenforceable.	Cited for the proposition that child support provisions not meeting § 240(1-b)(h) must be vacated.
Tartaglia v. Tartaglia, 260 A.D.2d 628	Authority holding that child support provisions not compliant with statute are unenforceable.	Cited for the proposition that child support provisions not meeting § 240(1-b)(h) must be vacated.
Zenz v. Zenz, 260 A.D.2d 474	Authority holding that child support provisions not compliant with statute are unenforceable.	Cited for the proposition that child support provisions not meeting § 240(1-b)(h) must be vacated.
Farca v. Farca, 271 A.D.2d 482	Authority that maintenance and related financial provisions may be closely intertwined with child support provisions.	Cited to justify vacating maintenance and college/automobile expense provisions as closely intertwined with child support.
Gaetano v. Gaetano, 92 A.D.2d 909	Authority that maintenance and related financial provisions may be closely intertwined with child support provisions.	Cited to justify vacating maintenance and college/automobile expense provisions as closely intertwined with child support.

Court's Reasoning and Analysis

The Supreme Court denied the plaintiff's motion based on a factual finding that the plaintiff was aware of the CSSA when entering the stipulation. The Appellate Division acknowledged that factual basis but held that statutory compliance with Domestic Relations Law § 240(1-b)(h) does not turn on a party's subjective awareness alone. The court identified four specific recitals required by the statute that were absent from the stipulation: (1) that the parties had been made aware of the CSSA, (2) that they were aware application of the CSSA would calculate the presumptively correct amount, (3) the amount of the presumptively correct support under the CSSA, and (4) the parties' reasons for any departure from the guidelines. Because those statutory recitals were not included, the Appellate Division concluded the child support provisions were not enforceable and must be vacated. The court also vacated the stipulation provisions regarding maintenance and the parties' financial obligations for college and automobile expenses because those provisions are closely intertwined with the child support provisions. The court remitted the matter to the Supreme Court, Suffolk County, to determine child support in accordance with the Child Support Standards Act and for a de novo determination of maintenance and the financial obligations for college and automobile expenses. The court ordered that pending the de novo determination the defendant shall pay child support and maintenance as set by the previously entered pendente lite order.

Holding and Implications

Holding: The Appellate Division modified the Supreme Court's order by granting the plaintiff's motion to the extent of vacating the provisions relating to child support, maintenance, and the parties' financial obligations for college and automobile expenses; the order was affirmed as modified and the matter was remitted to the Supreme Court for further determinations. Pending the de novo determinations, the defendant must pay child support and maintenance as set by the prior pendente lite order.

Implications: The direct effect is that the specific stipulation provisions identified are vacated and the Supreme Court must determine child support under the CSSA and make de novo determinations as to maintenance and the parties' financial obligations for college and automobile expenses. The opinion emphasizes statutory compliance with Domestic Relations Law § 240(1-b)(h) (i.e., required recitals) and does not announce any broader new legal principle beyond applying existing precedent.

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CAROL LEPORE, APPELLANT, v. FRANCES LEPORE, RESPONDENT.

DECISION ORDER

ORDERED that the order is modified, on the law, by deleting the provision thereof denying the motion in its entirety and substituting therefor a provision granting the motion to the extent of vacating the provisions relating to child support, maintenance, and the parties' financial obligations for college and automobile expenses; as so modified, the order is affirmed, without costs or disbursements, and the matter is remitted to the Supreme Court, Suffolk County, to determine child support in accordance with the Child Support Standards Act and for a de novo determination of maintenance and the parties' financial obligations for college and automobile expenses; and it is further,

ORDERED that pending the de novo determination of the Supreme Court, Suffolk County, the defendant shall pay child support and maintenance as set by the pendente lite order previously entered by the Supreme Court, Suffolk County.

The parties' stipulation of settlement, set forth on the record at a hearing on July 28, 1999, did not recite: (1) that the parties had been made aware of the Child Support Standards Act (hereinafter the CSSA), (2) that they were aware that application of the CSSA guidelines would result in the calculation of the presumptively correct amount of support, (3) the amount of the presumptively correct support that would have been calculated pursuant to the CSSA, and (4) the parties' reasons for their departure from the guidelines (see, Domestic Relations Law § 240[1-b][h]).

The Supreme Court denied the plaintiff's motion because it was of the opinion that she was, in fact, well aware of the provisions of the CSSA at the time she entered into the stipulation. While there appears to be a factual basis for the Supreme Court's conclusion, a party's awareness of the requirements of the CSSA is not the dispositive consideration under the statute (see, Sloam v. Sloam, 185 A.D.2d 808; cf., L 1989 ch 567; Appel v. Appel, 241 A.D.2d 470; Maser v. Maser, 22 6 A.D.2d 684; Gonsalves v. Gonsalves, 212 A.D.2d 932; Matter of Clark v. Clark, 198 A.D.2d 599). Domestic Relations Law § 240(1-b)(h) requires specific recitals which were not included in the parties' stipulation . Accordingly, the child support provisions of the stipulation are not enforceable and must be vacated (see, Tolchin v. Freeman, 275 A.D.2d 452 [2d Dept., Aug. 2 8, 2000]; Toussaint v. Toussaint, 270 A.D.2d 338; Tartaglia v. Tartaglia, 260 A.D.2d 628; Zenz v. Zenz, 260 A.D.2d 474).

We have also vacated the provisions in the stipulation regarding maintenance and the parties' financial obligations for college and automobile expenses, since these provisions are closely intertwined with the child support provisions (see, Farca v. Farca, 271 A.D.2d 482; Gaetano v. Gaetano, 92 A.D.2d 909).

LEPORE v. LEPORE