Once again Justice Matt Cooper has been affirmed. In Brown v. Condzal (First Department March 29, 2016) the Appellate Division held that the obligation contained in a settlement agreement incorporated into a divorce judgment to pay private school tuition is enforceable as a "child support" obligation and correctly characterized as such by the trial court. The trial court granted a $56,326.66 money judgment with pre-judgment interest and a $30,000 counsel fee for the wife's attorneys. Not unlike the recent decision in the Frankel case, where the appellate court held that there are no magic words required to exclude temporary spousal maintenance from the meaning of a prenuptial agreement, the appellate court held that the explicit reference to private school tuition is "child support" under the statute, noting that the parents are permitted by Domestic Relations Law § 240(1-b)(h), to define their respective child support obligations by the terms of their separation agreement, rather than by the court's application of the statutory guidelines.
All New York divorce lawyers, like Robert G. Smith, PLLC should take note of today's (March 22, 2016) Anonymous v. Anonymous decision in the Appellate Division First Department, which puts another nail in the coffin of those divorce litigants who seek to challenge the spousal maintenance provisions contained in prenuptial agreements. The waiver contained in the prenuptial agreement did not contain the words "temporary support" or "interim support". It merely recited that the affianced couple were each "fully capable of being self supporting" and they each "waived any and all claims for spousal support and/or maintenance" both "now and in the future". That was enough for an Appellate Division panel which included Justices Richter (who recently authored the Gottlieb decision), Andrias and Friedman. Justice Acosta dissented in a robust argument which highlighted prior precedent which, he argued, was to the contrary. New York divorce lawyers should take note. And divorcing clients should expect their New York divorce lawyers to be abreast of this ever developing body of law.