Brown v. Powell

Judgment unanimously modified on the law and as modified affirmed without costs and matter remitted to Supreme Court for further proceedings in accordance with the following Memorandum: The record supports Supreme Court’s determination that the parties did not intend to abandon the separation agreement (see, Lippman v Lippman, 192 AD2d 1060, 1061; Zambito v Zambito, 171 AD2d 918, 920, appeal dismissed 78 NY2d 1125). Defendant’s contention that the separation agreement is unfair, unreasonable and unconscionable has not been preserved for our review (see, Lister Elec, v Incorporated Vil. of Cedarhurst, 108 AD2d 731, 733) and, in any event, is lacking in merit (see, Reader v Reader, 236 AD2d 829). We agree with defendant, however, that both the child support provisions of the separation agreement and that part of the judgment incorporating those provisions fail to satisfy the requirements of Domestic Relations Law § 240 (1-b) (h) (see, Zenz v Zenz, 260 AD2d 474; see also, Matter of Michelle W. v Forrest James P., 218 AD2d 175, 178). We therefore modify the judgment by vacating that part incorporating the child support provisions of the separation agreement, and we remit the matter to Supreme Court to determine plaintiffs child support obligation in accordance with the Child Support Standards Act (see, Domestic Relations Law § 240 [1-b]; Zenz v Zenz, supra). (Appeal from Judgment of Supreme Court, Steuben County, Latham, J.— Matrimonial.) Present — Green, J. P., Hayes, Hurlbutt, Kehoe and Balio, JJ.