Opinion
April 29, 1996
Appeal from the Supreme Court, Westchester County (Burrows, J.).
Ordered that the appeals from the decisions dated March 31, 1994, and September 28, 1994, are dismissed, without costs or disbursements, as no appeal lies from a decision ( see, Schicchi v. Green Constr. Corp., 100 A.D.2d 509); and it is further,
Ordered that the appeal from so much of the order entered May 16, 1994, as directed entry of a judgment for child support arrears in the principal sum of $145,944.16, plus interest thereon from December 3, 1993, is dismissed, without costs or disbursements, as that provision of the order was superseded by the judgment entered May 25, 1994; and it is further,
Ordered that the order entered May 16, 1994, is modified by deleting the provisions thereof which, in effect, denied those branches of the husband's cross motion which were to reform the divorce judgment and stipulation of settlement to conform the child support provisions thereof to the Child Support Standards Act and for a hearing to determine child support, and the matter is remitted to the Supreme Court, Westchester County, for a hearing to determine whether the husband was aware of the Child Support Standards Act provisions at the time the stipulation of settlement setting forth his child support obligations was executed; as so modified, the order is affirmed insofar as reviewed, without costs or disbursements; and it is further,
Ordered that the judgment entered May 25, 1994, is modified by deleting the provision thereof awarding prejudgment interest in the sum of $6,567.48; as so modified, the judgment is affirmed, without costs or disbursements; and it is further,
Ordered that the order entered December 6, 1994, is affirmed insofar as appealed from, without costs or disbursements.
Where it is shown that there is an amount due for unpaid child support pursuant to a stipulation incorporated by reference in a judgment, the court is without discretion to refuse to enter a judgment in the amount of the arrears ( see, Domestic Relations Law § 244; Hugel v. Stewart, 181 A.D.2d 1054; Felton v. Felton, 175 A.D.2d 794). Because the husband failed to move for affirmative relief prior to the wife's motion and did not contest the existence of the arrears, the Supreme Court was compelled to grant the wife's motion ( see, Miller v. Miller, 160 A.D.2d 912). Moreover, the husband's conclusory allegations and vague challenges to the amount of arrears claimed by the wife were not sufficient to raise a material question of fact so as to require a hearing ( see, Gunsburg v. Gunsburg, 173 A.D.2d 232). We find, however, that there was an insufficient showing that the husband willfully disregarded the child support provisions, to warrant the imposition of prejudgment interest ( see, Messina v. Messina, 143 A.D.2d 735), and we have modified the judgment accordingly.
Furthermore, the denial of those portions of the husband's cross motion which sought a modification of his child support obligations, without first conducting a hearing to determine if the husband knowingly opted out of the Child Support Standards Act (hereinafter CSSA), was improper. While the parties are free to opt out of the CSSA standards, such a decision must be made knowingly ( see, Sloam v. Sloam, 185 A.D.2d 808, 809). Because the stipulation in this case did not expressly state, as required by law, that the parties knowingly opted out of the CSSA standards ( see, Domestic Relations Law § 240 [1-b] [h]), and the husband claims that he was not informed of the provisions of the CSSA prior to executing the stipulation, a hearing must be conducted to determine whether the husband was aware of the CSSA at the time the stipulation was executed ( see, Sloam v. Sloam, supra; see also, Gonsalves v. Gonsalves, 212 A.D.2d 932; Matter of Clark v. Clark, 198 A.D.2d 599). Should the court determine that the husband was unaware of the CSSA, the stipulation must be held invalid insofar as it relates to child support and the husband may seek modification of his child support obligation (see, Sloam v. Sloam, supra).
Regarding the denial of the husband's motion to vacate his default in answering the complaint, we agree with the Supreme Court that the husband failed to demonstrate a reasonable excuse for his default ( see, Bernholz v. Bernholz, 184 A.D.2d 542, 543). We note, however, that vacatur of the default under the divorce judgment is not a prerequisite to seeking modification of the child support provisions in the stipulation of settlement or the divorce judgment ( see, Mason v. Mason, 69 A.D.2d 942). Copertino, J.P., Pizzuto, Friedmann and McGinity, JJ., concur.