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Kashman v Kashman


2017 NY Slip Op 01343

February 22, 2017


This is an appeal and cross-appeal from an order entered into by the Nassau County Supreme Court from 3/17/15. The order denies a cross motion of the defendant for summary judgment and found that the plaintiff had waived the right to equitable distribution, maintenance, and attorney fees. The portion of the order being appealed, denies the plaintiff’s motion which granted leave to renew, and for the branch of the motion which was for a leave to reargue, and denied the portion  of the plaintiff’s motion which requested an award for pendente light maintenance, and granted the plaintiff’s motion which requested pendente lite child support to the extent of awarding her 3,000 per month.

The court ordered that the order dated 3/17/15 should be modified based on law and facts, and exercising the court discretion as follows. Delete the provision denying the defendant’s cross motion for summary judgment, determining that the plaintiff had waived her right to attorney fees, equitable distribution and maintenance, and substitute a provision granting the defendant’s cross motion. Delete the portion that adheres so much to the order dated 10/2/14, as denied the portion of the order that addressed a pendente lite award for child support only awarding her 3,000 per month, and substituting a provision vacating that portion of the order dated 10/2/14. The order is affirmed as so far as it had been appealed and cross-appealed, without costs and the issue is remitted to the Nassau County Supreme Court for a new decision regarding the issue of the plaintiff’s motion for pendente lite maintenance and child support.

Ordered that in the meantime, the defendant will be required to pay the amount of 3000 in child support.

The parties have three children between them and were married in 1995. Before they were married, they each prepared a prenuptial agreement. In the agreement, each said that in the event of a divorce each party waived the right to alimony, equitable distribution and attorney fees. The plaintiff filed this action in 2014. After filing, the plaintiff moved for pendente lite (temporary) maintenance and child support in the amount of 7,500 per month as well as attorney fees.

The Supreme Court produced an order in 10/2/14 and awarded the plaintiff 3,000 per month for the child support and attorney fees in the amount of 10,000. The court denied her request for maintenance. The plaintiff sought to reargue her portion of the motion requesting pendente lite maintenance and child support of 7,500 per month.

The defendant filed a cross-motion for a summary judgment, contending that the plaintiff waived the right to all support and fees. The court denied the cross motion on 3/17/15. The court also denied the portion of the motion which requested leave to renew the plaintiff’s argument, adhering to the determination that the pendente lite support was granted to the plaintiff for child support in the amount of 3,000 per month.

The court said that “an agreement between two spouses which appears fair on its face will be enforced according to its provisions unless it can be shown that it is unconscionable, far-reaching, or was entered into under fraud or duress (McKenna v McKenna 121 AD3d 864). Here, the defendant has proven that the prenuptial agreement wasn’t a product of fraud or duress (McKenna v McKenna 121 AD3d 864), and that by the terms of the agreement, the parties waived their right to spousal support, attorney fees and equitable distribution (Vendome v Vendome 41 AD3d 837). The plaintiff didn’t bring up a triable issue of fact. The Supreme Court should have granted the defendant’s motion for summary judgement.

Despite the fact that with the prenuptial agreement there was a waiver of maintenance, attorney fees and equitable distribution, it doesn’t specifically prevent an award for pendente lite maintenance and child support (Davis v Davis 144 AD3d 623, Abrams v Graves 109 AD3d 849, McKenna v McKenna 121 AD3d 867. While the Supreme Court did provide interim attorney’s fees, the did not allow temporary spousal support or child support.

In deciding the issue of temporary child support, the courts are allowed to apply the Child Support Standards Act (CSSA) guidelines but they are obligated to (Davydova v Sasonov 109 AD3d 955, Kaufman v Kaufman 131 AD3d 939). The court said when they have sufficient economic date, a pendente lite child support award that is different from the provisions of CSSA, can be used at the court’s discretion absent a reason to do otherwise (Davydoda v Sasonov 109 AD3d 957).

Here, the court didn’t provide any reasoning as to how it arrived at the amount of child support. The matter needs to be returned to Nassau County Superior Court for a correct calculation. If the court doesn’t use CSSA, it needs to explain their reasoning.

The parties remaining issues are found to be without merit.

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