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As all experienced family law practitioners in New York State are well aware, the Family Court and Supreme Court share concurrent jurisdiction over support matters. However, the Family Court is a court of limited jurisdiction and lacks the equity jurisdiction necessary to set aside the provisions of a stipulation incorporated, but not merged into an order or judgment. 1 Despite such limitations, New York State case law has established that as a matter of public policy, the Family Court will disregard the child support provisions of a judgment of divorce and agreement incorporated therein, when those provisions violate the provisions of the Child Support Standards Act (CSSA). However, to the extent that the recent Second Department case of Savini v. Burgaleta 2appears to suggest otherwise, it warrants the attention of marital practitioners. Case Law Before discussing the specifics of the Savinicase, it is instructive to review the applicable case law in this area. First, in the seminal case of Brescia v. Fitts, 3which originated in the Family Court, the Court of Appeals made clear that the Family Court may modify a judgment or order of support, despite the existence of an incorporated agreement, where the issue involves the child’s right to receive adequate support. 4The Family Court’s authority in this regard, explained the Court of Appeals, derives from Family Court �461, providing that a separation agreement or divorce judgment “does not eliminate or diminish either parent’s duty to support a child of the marriage under section four hundred thirteen of this article” (i.e., the CSSA). While the Bresciadecision dealt with the Family (and Supreme) Court’s authority to modify a support order where the child’s needs are not being met, and not specifically with a violation of the CSSA, it clearly vests the Family Court with the authority to modify an inadequate order of support. The Appellate Division, Second Department, has clearly addressed the Family Court’s authority to enter a new support order where the judgment of divorce and incorporated stipulation violate the provisions of the CSSA. In Bill v. Bill, 5the Second Department, held that the Family Court properly awarded the custodial mother child care expenses where the child support provisions of the parties’ stipulation of settlement incorporated into their judgment of divorce did not contain the necessary CSSA language. Similarly, in Phillips v. Phillips, 6the Second Department affirmed the hearing examiner’s modification of a child support order and stipulation upon which it was based since it failed to comply with the CSSA. The court stated that “the hearing examiner properly modified the order so that the amount of child support awarded complied with the CSSA.” 7In other words, where the Family Court determines that there is a violation of CSSA, it has the authority to conduct a de novo hearing on child support, despite the existence of an agreement between the parties which has been incorporated into a judgment or order. Indeed, in Schaller v. Schaller, 8the Second Department made it quite clear that where an agreement incorporated into a divorce judgment violates the provisions of the CSSA, a litigant is not relegated to an action in the Supreme Court to set aside the agreement. In Schaller, the mother filed for an upward modification of the child support provisions of the judgment of divorce incorporating the parties’ stipulation of settlement. The hearing examiner granted the petition, finding that the parties’ agreement did not comply with the CSSA because the father understated his actual income, in violation of the CSSA. The Family Court overruled the hearing examiner, holding that the mother’s remedy was to vacate the agreement in the Supreme Court on the ground of fraud. The Second Department reversed, holding that the mother’s petition for an upward modification of support based on the CSSA should have been granted, since the parties’ agreement in violation of the CSSA was unenforceable. As stated by the Schallercourt, “the mother’s petition sought only an upward modification of support. Since the child support provision of the parties’ agreement violated the CSSA, it was unenforceable, and the hearing examiner properly granted the mother’s petition for an upward modification based on the CSSA guidelines [citation omitted].” The court explained that the “opt out” provision of the statute was intended to protect the interest of children as the intended beneficiaries of the CSSA, and further stated that, “the Family Court has the power to order support where the dispute concerns a child’s right to receive adequate support.” 9 The Third Department has weighed in on this issue as well. In Maki v. Straub, 10the custodial mother filed an upward modification petition in the Family Court despite the existence of a separation agreement incorporated into the divorce judgment. After the Family Court granted the petition, the father filed a Supreme Court action seeking damages for breach of the separation agreement. The Appellate Division, stated that the father’s theory of recovery was contrary to the public policy promulgated by the CSSA, and reiterated the holding in Bresciathat the mother, on behalf of the children, was entitled to seek relief in the Family Court to ensure their right to adequate support. Similarly, in Sievers v. Estelle, despite the existence of an agreement of the parties approved by the Family Court, the Third Department held that since the agreement failed to comply with the CSSA, the Family Court was required to enter a de novo child support order pursuant to the CSSA. In two related appeals – < ahref=”http://www.nycourts.gov/reporter/3dseries/2004/2004_05706.htm” target=”new”  Dudla v. Dudla 11- the Third Department, in dicta, made clear its view that the Family Court was empowered to entertain a de novo child support order where the divorce judgment and incorporated stipulation violated the CSSA. In the first appeal, the Appellate Division held that the father (who shared equal physical custody with the mother) could not argue for the first time on appeal, that the parties’ stipulation violated the CSSA; his recourse was a plenary action (in the Supreme Court) to set aside the stipulation. Rather than commencing such a plenary action, the father filed a petition in the Family Court seeking child support, alleging that the stipulation violated the CSSA. The Family Court dismissed the father’s petition for his supposed failure to comply with financial disclosure, leading to another appeal. The Appellate Division reversed, holding that the Family Court should have entertained the father’s petition, despite the existence of a judgment of divorce incorporating the parties’ stipulation. Similarly, in Fuller v. Witte, the Family Court held that the parties’ judgment of divorce and incorporated stipulation violated the provisions of the CSSA, and remanded the matter to the Support Magistrate for a de novo hearing on child support. While the subsequent appeal did not deal directly with the authority of the Family Court to conduct such a de novo hearing, the Third Department affirmed the case in all respects. ‘Savini’ Our discussion now brings us to the Savinicase. In Savini, the parties executed a stipulation on the record dated April 15, 1996 and a written stipulation dated Oct. 29, 1996 providing for the support of their children. In an unacknowledged, handwritten agreement dated April 19, 1997, the mother agreed to accept a different amount of child support; 12however, only the two original stipulations were incorporated, but not merged, into the parties’ judgment of divorce entered Sept. 2, 1997. In August 2004, the mother commenced a Family Court proceeding to enforce the child support provisions of the judgment of divorce. The father attempted to transfer the petition to the Supreme Court and to have it dismissed there based on the April 19, 1997 handwritten agreement. 13The Supreme Court held that the handwritten agreement was invalid because it failed to comply with the requirements of DRL �240(1-b)(h), and denied the father’s application to transfer the petition to the Supreme Court. The stage was thus set for the events that followed in the family court. In the enforcement proceeding, the Support Magistrate, sua sponte, determined that the parties’ divorce judgment and the stipulations did not comply with the CSSA, and thus made a de novo determination of child support. The father filed objections to the order, claiming that the Support Magistrate had no jurisdiction to hold a de novo hearing on child support as if the divorce judgment did not exist. The Family Court denied the father’s objections. So far, nothing seems very unusual. However, on appeal, the Second Department agreed with the father that the Family Court lacked subject matter jurisdiction “to vacate as illegal so much of the judgment of divorce as directed the father to pay child support and, thereafter, to determine the issue of child support de novo.” The Appellate Division stated that the New York State Constitution, Article 6 �13(c) and FCA �466 vested the Family Court with the limited jurisdiction to enforce or modify 14an order or decree of the Supreme Court. However, according to the court: Nowhere in the Constitution, in the Family Court Act, or in the judgment of divorce itself, is the Family Court empowered, in effect, to invalidate a stipulation incorporated into the judgment of divorce entered by the Supreme Court. Significantly, the purpose of the mother’s petition was to enforce the terms of the stipulation of Oct. 29, 1996 – not to have it declared illegal. Had either party questioned the legality of the stipulation, the issue should have been determined by the Supreme Court, which had issued the judgment in which the stipulation was incorporated. The Second Department then remitted the matter to the Family Court for a new hearing on the mother’s enforcement petition. Analysis No one can dispute the Savinicourt’s conclusion that the Family Court, as a court of limited jurisdiction, lacked the power to vacate the parties’ judgment of divorce or stipulation incorporated therein. However, at first blush, it is not clear why the Family Court in Savinicould not modify the child support provisions of the judgment of divorce after a determination that they were in violation of the CSSA. In such instance, it seems that as a matter of public policy concerning a child’s right to adequate support, the Family Court would be required to issue a child support order in conformance with the CSSA. Either the Savinicourt intended to make new law in this area, thereby denying the Family Court the power to remedy defective child support provisions contained in a judgment of divorce and incorporated stipulation, or some other factor distinguishes this case from those cases permitting the Family Court to order a de novo hearing on child support in those instances. Since an attempt to make such new law would fly in the face of Bresciaand subsequent case law, Savinishould be distinguished on other grounds. The language of the Savinidecision suggests that the Appellate Division was troubled by procedural and jurisdictional issues. The court emphasized that the purpose of the mother’s petition was to enforce the terms of the parties’ stipulation incorporated into the judgment of divorce, not to void the stipulation (an action for which must be brought in Supreme Court in any event). Thus, it appears that the Savinicourt took exception to the Support Magistrate’s attempt, in an enforcement proceeding, to disregard the provisions of the judgment of divorce and agreement incorporated therein. If the Savinicase had involved a petition for an upward modification of child support, thereby vesting the Family Court with jurisdiction to modify a Supreme Court divorce judgment, it is likely that the Appellate Division would have affirmed the lower court. In such instance, the Appellate Division would simply be following the established case law that the Family Court may modify the child support provisions of a judgment of divorce and incorporated agreement that violate the CSSA. Significantly, all of the case law authorizing such modification located by this author involved proceedings for the modification of child support or for an initial order of support; 15none permitted a de novo determination of child support in a Family Court enforcement proceeding. One might question, as a matter of judicial economy, why the Family Court, in an enforcement proceeding, could not sua sponte remedy the defective child support provisions of a divorce judgment incorporating the parties’ stipulation. However, the Savinicourt’s rejection of such an exercise of jurisdiction by the Family Court is consistent with the principle that even a defective order or judgment, so long as lawfully made and not void on its face, 16must be obeyed until it is vacated or otherwise set aside. 17 As stated in Gloveman Realty Corp. v. Jefferys, 18“[a] party is obligated to comply with a court order, however incorrect the party may consider that order to be, until that order is set aside, either by appeal or otherwise, so long as the court issuing the order had jurisdiction to do so” [citations omitted.] Thus, the Support Magistrate in Saviniwas required, as a matter of law, to enforce the judgment of divorce and incorporated stipulation as requested by the mother until such time as it was properly vacated or modified. 19 This principle is highlighted in another recent Second Department case, Victorio v. McBratney. 20In Victorio, the custodial mother brought an enforcement petition against the father for violating the child support provisions of the parties’ judgment of divorce and settlement agreement, which was incorporated but not merged therein. The agreement failed to state what the presumptive amount of child support would be under the CSSA, and additionally failed to explain the reason for the deviation, both violations of the CSSA. Moreover, the Supreme Court did not set forth its reasons for approving a support order which deviated from CSSA guidelines. Despite the fact that the judgment and settlement agreement were defective, the Support Magistrate determined that the father wilfully disobeyed his obligation under a lawful order and an order of commitment was issued by the Family Court. The Appellate Division modified only to the extent of reducing the purge amount, serving as a reminder that no excuses will be tolerated for the failure to obey a lawful order of the court. Similarly, in a Third Department case, Clark v. Liska, the custodial mother filed an support enforcement petition against the father, who asserted for the first time in his answer that the divorce judgment (and presumably, the incorporated stipulation as well) was in violation of the CSSA. The Family Court entered a violation order against the father without entertaining his defense, a holding that was affirmed by the Appellate Division. Conclusion Family Court Act �461, together with established New York case law, clearly empowers the Family Court to enter a de novo child support order where the provisions of the CSSA are violated, despite the existence of an agreement of the parties incorporated into the judgment of divorce. The Savinicase, while seemingly limiting the Family Court’s powers in this regard, should be interpreted narrowly to stand for the proposition that in Family Court enforcement proceedings, the sole issue to be determined is whether the respondent has violated a lawful order of the court, not whether the child support provisions of the agreement or judgment comply with the CSSA. Benjamin E. Schub is a member of Berman, Bavero, Frucco & Gouz PC, a firm specializing in matrimonial and family law, with offices located in White Plains, N.Y. Endnotes: 1. See Matter of Brescia v. Fitts,56 NY2d 132, 436 N.E.2d 518, 451 N.Y.S.2d 68 (1982) (stating that the Family Court, lacking equity jurisdiction, is without power to set aside or modify the terms of a separation agreement). See also Sparacio v. Sparacio,248 AD2d 705, 670 N.Y.S.2d 558 (2nd Dept. 1998) (“the Family Court is a court of limited jurisdiction and is without the power to set aside or modify the terms of a settlement agreement”); Gottlieb v. Gottlieb, 294 AD2d 537, 742 N.Y.S.2d 873 (2nd Dept. 2002); Huddleston v. Huddleston , 14 A.D.3d 511, 788 N.Y.S.2d 411 (2nd Dept. 2005). 2. 34 AD3d 686, 825 N.Y.S.2d 493 (2nd Dept. 2006) 3. 56 NY2d 132, 436 N.E.2d 518, 451 N.Y.S.2d 68 (1982). 4. Id. At 140. 5. 214 AD2d 84, 631 N.Y.S.2d 699 (2nd Dept. 1995). 6. 245 AD2d 457, 666 N.Y.S.2d 656 (2nd Dept. 1997). 7. Id. 8. 279 AD2d 525, 719 N.Y.S.2d 278 (2nd Dept. 2001). 9. Id. At 526. 10. 167 AD2d 589, 563 N.Y.S.2d 218 (1990). 11. 304 AD2d 1009, 759 N.Y.S.2d 212 (2003); 9 A.D.3d 546, 779 N.Y.S.2d 292 (2004). 12. The handwritten agreement dated April 19, 1997 provided for a fixed amount of support, as opposed to the previous stipulations whereby child support was calculated as a percentage of the father’s income. 13. As an interesting aside, note that upon assuming jurisdiction over a Family Court petition, the Supreme Court is required to follow the substantive and procedural rules set forth in Article 4 of the Family Court Act. See Besharov, Douglas J., “Practice Commentaries to McKinneys Annotated Statutes of New York, �411″ (1998). See also Pierot v. Pierot, 49 AD2d 838, 373 N.Y.S.2d 592 (1st Dept. 1975); Levy v. Levy, 46 A.D.2d 876, 362 N.Y.S.2d 15 (1st Dept. 1974). This could have significant ramifications, for example, when applying the less stringent requirements of FCA �454, as compared to the more onerous provisions of DRL �245, in determining willfulness upon a support enforcement petition. 14. Provided there has been a subsequent change of circumstances requiring such modification. 15. Presumably, where a party filed a petition for an initial order of support, as opposed to a modification petition, the Family Court exercised its discretion to treat it as a modification petition. 16. See Gardner v. Carson, 295 AD2d 709, 743 N.Y.S.2d 326 (3rd Dept. 2002); Matter of Bickwid v. Deutsch, 229 AD2d 533, 645 N.Y.S.2d 539 (2nd Dept. 1996), lv. denied 89 N.Y.2d 802, 675 N.E.2d 1232, 653 N.Y.S.2d 279 (1996). 17. 29 AD3d 858, 815 N.Y.S.2d 687 (2nd Dept. 2006). 18. 29 AD3d 858, 815 N.Y.S.2d 687 (2nd Dept. 2006). 19. While there may be other defenses to an enforcement application, such as waiver or estoppel, discussion of such defenses is beyond the scope of this article. 20. 32 AD3d 962, 821 N.Y.S.2d 262 (2nd Dept. 2006).

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