CHILD SUPPORT AGREEMENTS - WHERE AMOUNT VARIES WITH INCOME

Decker v. Decker, 2017 NY Slip Op 1614 - NY: Appellate Div., 3rd Dept. 2017:

"Plaintiff (hereinafter the mother) and defendant (hereinafter the father) are the divorced parents of a daughter (born in 1995) and a son (born in 1998). In 2005, the parties stipulated to a separation agreement that was incorporated but not merged into the judgement of divorce. The agreement set forth the father's child support obligation based upon his then-current income of just under $50,000 and provided that the father's income would be subject to reevaluation each year. To facilitate the yearly reevaluation, the agreement provided that the parties would exchange their "proper and complete" income tax returns each year, and the father's child support obligation would "rise or fall" based upon his annual income in accordance with the Child Support Standards Act (see Domestic Relations Law § 240 [1-b]). In November 2014, the mother moved to enforce the agreement, alleging, among other things, that the father had failed to provide her with a copy of his tax returns for several years and, as a result, he had underpaid his child support obligation. The father then moved for, among other things, an order terminating the tax exchange provision of the agreement. Following a hearing, Supreme Court granted the mother's motion, calculated the arrears owed by the father for 2011, 2012, 2013 and 2014, set the father's monthly child support obligation going forward and denied the father's motion. The father now appeals.

Despite the father's efforts to limit any increases in his child support obligation by entering into a series of post-judgment oral agreements with the mother, she did not waive her right to collect the child support contemplated by their separation agreement. Although a parent can expressly waive his or her right to unpaid child support, such a waiver must evince a "voluntary and intentional abandonment of a known right" (Matter of Williams v Chapman, 22 AD3d 1015, 1017 [2005] [internal quotation marks and citations omitted]; accord Matter of Hastie v Tokle, 122 AD3d 1129, 1129-1130 [2014]). Here, although the record establishes that the father negotiated child support increases with the mother in 2009, 2012 and 2013, he readily acknowledged that he consistently failed to provide the mother with a copy of his annual income tax returns and, therefore, she was unaware that his annual income eventually exceeded $350,000. Significantly, the father testified that the mother did, in fact, request "more information" than what he verbally provided to her, but he told her that he did not "have to give [her his] full and complete tax returns because the law is supportive of that." According to the mother, she requested a copy of the father's tax returns each year, but he refused to comply, telling her that they were too complicated for her to understand and, because he was no longer residing in New York, he was not subject to the Child Support Standards Act. In light of the father's efforts to conceal the true extent of his income, we agree with Supreme Court that the mother did not voluntarily and intentionally waive her right to any unpaid child support (see Matter of Hastie v Tokle, 122 AD3d at 1130; compare Hannigan v Hannigan, 104 AD3d 732, 734-735 [2013], lv denied 21 NY3d 858 [2013]; Matter of O'Connor v Curcio, 281 AD2d 100, 105 [2001]).
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Finally, we find no merit to the father's assertion that the tax return exchange provision is unworkable, and we cannot agree that Supreme Court erred in denying his request to terminate it. In our view, this provision is the only practical means by which the parties can determine the appropriate amount of child support without the court's annual intervention. To the extent that the father is concerned about the privacy of the Social Security numbers of his wife and their children, those numbers can be redacted. The father's remaining contentions have been considered and determined to be lacking in merit."