CHILD SUPPORT - LANGUAGE USED AS REASON FOR DEVIATION IN OPTING OUT CAN BE CRITICAL

Fasano v Fasano, 2018 NY Slip Op 06228, Decided on September 26, 2018, Appellate Division, Second Department:

"The parties were married in 1993 and have two children together. On October 25, 2012, the parties entered into a stipulation of settlement regarding a prior divorce action. The stipulation provided that although the defendant's monthly child support obligation using the Child Support Standards Act (hereinafter CSSA) calculation (see Domestic Relations Law § 240[1-b]) would be $1,994.45 on the first $130,000 of combined parental income and $2,575.61 on the total combined parental income, the parties had agreed that the defendant's monthly child support obligation would be $1,500. The stipulation also provided that there would be no "add-ons" or "additional health costs" added to these child support payments, even though the CSSA generally provides that each parent's share of unreimbursed health care expenses is to be prorated in the same proportion as each parent's income is to the combined parental income (see Domestic Relations Law § 240[1-b][c][5][v]; Castello v Castello, 144 AD3d 723, 727). The stipulation contained an [*2]explanation that the deviation from the CSSA calculation was necessary "to allow the [defendant] to retain the marital residence as a place for the children to be with him when they are together" and had "been agreed by the parties to be in the best interests of the children to provide them continuity and stability in their living and educational environments."

In December 2013, after the prior action had been discontinued, the plaintiff commenced this action for a divorce and ancillary relief, requesting that the terms of the stipulation of settlement be incorporated into the judgment of divorce. In June 2014, the plaintiff moved, inter alia, for an upward modification of the defendant's child support obligation, including an add-on for unreimbursed health care expenses. The plaintiff presented evidence that the defendant had recently sold the marital residence and was moving to another residence in a different school district. The plaintiff also presented evidence that one of the children had begun incurring significant unreimbursed health care expenses after being hospitalized for mental illness.

In an order dated March 3, 2016, the Supreme Court, inter alia, denied that branch of the plaintiff's motion which was for an upward modification of the defendant's child support obligation. A judgment of divorce entered June 23, 2017, among other things, incorporated but did not merge the stipulation of settlement, and awarded the plaintiff child support in the sum of $1,500 per month. The plaintiff appeals from these portions of the order and the judgment of divorce.

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The Supreme Court should have granted that branch of the plaintiff's motion which was for an upward modification of the defendant's child support obligation. The stipulation indicated that the parties' reason for deviating from the CSSA calculation was to allow the defendant to retain the marital residence as a place for the children to be with him when they were together. Under these circumstances, the defendant's actions in selling and moving away from the marital residence constituted a substantial change in circumstances (see Domestic Relations Law § 236[B][9][b][2][I]; Matter of O'Connor-Gang v Munoz, 143 AD3d 825, 827)."