Chapter 8 DRL § 240(1-B)(H)OPT-OUT RECITALS FROM STATUTORY CHILD SUPPORT

JurisdictionNew York

Chapter Eight

dRL § 240(1-b)(h)Opt-Out Recitals From Statutory Child Support

I. Lack of Uniform Enforcement of the Recital Requirements in DRL § 240(1-B)(H) in Opt-Out Agreements

A. Public Policy and Purpose

In order to comprehend the nature of the discussion regarding the recital requirements set forth in N.Y. Domestic Relations Law § 240(1-b)(h) (DRL), it is important to understand the vigilance that the Legislature exercises over child-related issues, custody, and child support.2086 The Child Support Standards Act is an expression of important public policy.2087 The executive and legislative branches of state government joined to enunciate a strong public policy in New York State with respect to a minimal and adequate level of support for children2088 that is within the parents' means.2089 Child support is not a one-sided obligation placed upon a single parent, but rather an evaluation of the means and responsibilities of both parents and the needs and best interest of the child.2090

The primary components of the CSSA were enacted pursuant to 1989 N.Y. Laws chapter 567, § 7. The statute replaced a discretionary system and was enacted to "create greater uniformity, predictability and equity in fixing child support awards, while at the same time maintaining a degree of judicial discretion necessary to address unique circumstances."2091 The statute was intended to

"strengthen and enhance the tools available for . . . the establishment, enforcement, and collection of child support orders and [to] bring the state into compliance with the child support provisions of the . . . Personal Responsibility and Work Opportunity Reconciliation Act of 1996" —a clear incorporation of that statute and its goal of ensuring adequate child support. 2092

The CSSA includes a standardized numeric formula for calculating child support2093 and governs the standards and criteria by which child support is determined, whether by agreement or judicial fiat. The act has among its objectives the assurance that both parents contribute to the support of the children and that the children not unfairly bear the economic burden of parental separation.2094 Three add-ons follow the basic support calculation: child care2095 and unreimbursed health expenses, both of which are prorated in the same proportion or percentage as each parent's income bears to the combined parental income; and educational concerns, which are discretionary as to award and amount.

The current child support framework and enforcement programs are circumscribed by a federal framework, and these serve as the predicate to the receipt of federal funding, an undoubtedly strong motivator to keep the system intact.2096 A court cannot permit an unemancipated child to be without an appropriate level of financial support regardless of the propriety of the order issued.2097 Agreements which contract away the obligation to support a child according to the statute contravene public policy.2098 A settlement agreement absolving a parent of any support obligation with respect to the child is unenforceable; in the context of child support, the court must act as parens patriae and retains jurisdiction to act in the child's best interests.2099 In essence, child support is inviolably sacrosanct, and it is strictly verboten for a parent to not provide adequate support. These cases need to be examined against Dox v. Tynon,2100 O'Connor v. Curcio,2101 and Williams v. Chapman,2102 discussed in § 8.12, below.

Family Court lacks equity jurisdiction and is without power to set aside or modify the terms of an agreement.2103

B. Mandatory Recitals Where Support Deviates From the CSSA; Upward Modifications of Child Support Provisions—Nichols v. Nichols2104

Although parties may opt out of the statute, the "opt-out" provision was intended to protect the interest of the children who are the intended beneficiaries of the CSSA.2105 While parties are free to allocate their child support obligations as between them,2106 the contractual obligations of a separation agreement cannot bind a court from fulfilling its duty to see that parents fulfill their child support obligations. Although separation agreements, being contracts, are entitled to the solemnity and obligation of a contract, the contract yields to the welfare of the children when children's rights are involved.2107 This section addresses all aspects relevant to an agreement that seeks to opt out of the child support guidelines. Parties desirous of fashioning an amount of child support different from what is contemplated under the statute must satisfy the recitals in DRL § 240(1-b)(h) or the support provision is invalid and must be vacated:2108

(1) the parties have been advised of the substance of the CSSA; (2) the basic child support pursuant to the CSSA would presumptively result in the correct amount of child support; (3) what the CSSA basic child support would have been in the specific circumstances presented; and (4) the reasons why the agreed upon child support deviates from that set forth in the CSSA.

Compliance with the CSSA guidelines requires that the parties have been fully informed of the provisions of the statute and of how the guidelines would operate in their individual circumstances.2109 A judgment may not be entered incorporating a contractual child support provision which neither complied with nor validly opted out of the relevant statutory guidelines.2110

A judgment of divorce that incorporates a prior order of support which, in turn, incorporates by reference a written stipulation concerning child support, need not specifically recite the mandatory opt-out language where the stipulation and the order of support fully complied with the mandatory opt-out provisions of the CSSA; the statute only requires the inclusion of such recitals in the "agreement or stipulation . . . presented to the court for incorporation in an order or judgment" (Family Ct. Act § 413[1][h] ).2111 Once an agreement is invalid and unenforceable, a parent is not required to establish a basis to modify the prior order.2112

Prior to the 1992 amendment to DRL § 240(1-b)(h) (which had no retroactive effect on prior agreements2113), the CSSA provided that an agreement containing a child support provision had only to include a statement that the parties were aware of the CSSA.2114 By amending the CSSA to broaden the requirements, the Legislature evinced the intent that children are not adequately protected by the parties' general knowledge of the rights and obligations created by the CSSA alone; that parties now need more specific information prior to accepting less child support.2115

Family Court Act § 413(1)(h) is not applicable where a party seeks to vacate only that part of the order establishing arrears and not the underlying child support.2116

The child support provision, in Young v. Young,2117 did not include a calculation of basic child support or a recital that such calculation would result in the presumptively correct amount of child support. The provision also made no distinction between the defendant's obligation to pay basic child support and his obligation to pay other support not required by statute, such as college tuition and other expenses incurred after the child's 21st birthday. Rather, these expenses were grouped together as part of the defendant's whole child support obligation. The absence of the recitals and the obligation to pay basic child support, college tuition and other expenses were inextricably intertwined, accordingly, the entire child support provision was vacated as being in noncompliance with DRL § 240(1-b)(h).

II. Canons of Statutory Construction: Legislative Intent and Statutory Directive as to Performance of an Act in a Specified Manner

Generally, the proper interpretation of a statute ordinarily presents an issue of law reserved for the courts.2118 Section 92 of the N.Y. Statutes, "Legislative intent as primary consideration," is the bedrock of the canons of statutory construction. This statute directs that "[t]he primary consideration of the courts in the construction of statutes is to ascertain and give effect to the intention of the Legislature."2119 The comment could not possibly express any more vigor in its emphasis that "the duty of courts" in the application of this rule is a fundamental principle of statutory construction:

[I]n the construction of statutes the basic rule of procedure and the primary consideration of the courts is to ascertain and give effect to the intention of the Legislature. Hence the legislative intent is said to be the "fundamental rule," "the great principle which is to control," 2120 "the cardinal rule" and "the grand central light in which all statutes must be read."
The intent of the Legislature is controlling and must be given force and effect, regardless of the circumstance that inconvenience, hardship, or injustice may result. Indeed the Legislature's intent must be ascertained and effectuated whatever may be the opinion of the judiciary as to the wisdom, expediency, or policy of the statute, and whatever excesses or omissions may be found in the statute. 2121

Statutes § 173, "Mode of performance of act not material," another canon, directs:

A statute directing the performance of an act in a specified mode, which mode is not material, will be considered as directory only; but when the mode is prescribed so as to prohibit the performance in any other manner, the statute will be considered mandatory. 2122 [W]hen the Legislature prescribes a certain way in which an act shall be done, it may appear to the court that it was the intention to prohibit the performance in any other manner; and if such is the case the statute will be considered mandatory.
A statute requiring an assignment for the benefit of creditors to be acknowledged is mandatory, as it implies that one shall not be made without an acknowledgment. Likewise the requirement that such an assignment shall be
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