Divorce: New York

Divorce: New York

Cost of Living Adjustments to the Maintenance and Child Support Formulas

Posted in Child Support (C.S.S.A.), Maintenance, Statutes

As of January 31, 2016, the “income cap” for maintenance is $178,000.

The presumptive final maintenance formula on the first $175,000 of the payor’s annual income only just came into effect 6 days before that, for cases filed on or after January 25, 2016 (New York’s Laws of 2015, chapter 269 (D.R.L. §236[B][6][b][4]). For temporary maintenance, the $175,000 income cap under D.R.L. §236(B)(5-a)(b)(4) became effective for cases filed after October 24, 2015.

The Cost of Living Adjustment (COLA) to the $175,000 income cap is to be made every two years:

“[B]eginning January thirty-first, two thousand sixteen and every two years thereafter, the income cap amount shall increase by the sum of the average annual percentage changes in the consumer price index for all urban consumers (CPIU) as published by the United States department of labor bureau of labor statistics for the prior two years multiplied by the then income cap and then rounded to the nearest one thousand dollars. The office of court administration shall determine and publish the income cap.”

However, the income cap for child support purposes is still the $141,000 that has been in place since January 31, 2014.

Why? Because under New York’s Laws of 2015, chapter 347, Social Services Law §111-i was amended to change the COLA date from January 31st to March 1st. The child support cap will remain $141,000 until March 1, 2016.
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Extending the Order of Protection: Defining “Good Cause”

Posted in Family Offenses

What is the “good cause” needed to extend a Family Court Order of Protection nearing its expiration? In its January 20, 2016 decision in Molloy v. Molloy, the Second Department, answered that question.

The parties were married in May 2002, and are the parents of one child. In February 2010, the wife filed a family offense petition against the husband and, following a finding that the husband had committed certain family offenses, obtained a two-year stay-away order of protection in favor of the wife and the parties’ child.

As the expiration date of the order of protection approached, the wife moved to extend it for five years, arguing that there was “good cause” for the extension, citing Family Court Act §842.

In her supporting affidavit, the wife alleged that the husband had violated the order of protection by, for example, showing up at her apartment and banging on the door, and driving his vehicle too closely to the wife, a wheelchair user, while she was on her way to a police station for a custody exchange. Fearing for her safety, she reported some of these incidents to the police. She alleged that he had recently been arrested for violating the order of protection, and that the case was pending in the Criminal Court of the City of New York, Queens County. The wife also claimed that the husband’s girlfriend warned her that the husband said that when the wife’s order of protection expired he would return to her residence, and he threatened to kill her.

The wife also noted that because she and the husband have a child in common they have to frequently interact regarding the child’s visitation. The wife claimed that the husband’s conduct during the course of their interactions over the past several years had so terrified her that she carried a panic alarm whenever she left her home. She feared that once the order of protection expired the husband would begin harassing her again and might harm or kill her.

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Child Support Award Includes 25% of Father’s Future Bonuses

Posted in Child Support (C.S.S.A.)

In its January 7, 2016 decision in Fermon v. Fermon, the Appellate Division, Third Department, affirmed that part of the order of Rensselaer County Supreme Court Justice Raymond J. Elliott, III, that included in a permanent award of child support that the husband pay 25% of his future bonuses from his employer.

Here, the parties were married in 2000 and had two sons (born in 2002 and 2006). They were divorced in 2012 and, pursuant to a written stipulation of settlement that was incorporated but not merged with the judgment of divorce, they retained joint custody of the children and waived application of the Child Support Standards Act (see Domestic Relations Law § 240 [1-b]) to provide for no payments of basic child support.

Extensive motion practice ensued, with the wife seeking a variety of relief that included modification of the custody and child support provisions of the judgment, an assessment as to whether the husband committed fraud in the negotiations that led to the execution of the stipulation and an award of counsel fees to the wife. Justice Elliott conducted a hearing on the motions, after which he modified the provisions of the judgment to grant the wife sole legal custody of the children and directed the husband to pay the wife basic child support, arrearages and various add-ons> He further directed the husband to pay an additional $11,500 to the wife due to his alleged fraud in misrepresenting the value of his individual retirement account, and awarded the wife $35,000 in counsel fees. Both parties appealed.

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Absent Provision in Divorce Agreement, No Reduction in Child Support on Emancipation of Elder Child

Posted in Agreements and Stipulations, Child Support (C.S.S.A.)

A court will not provide for a reduction in child support upon the emancipation of the elder of two children when the parties’ divorce settlement stipulation, itself, does not provide for one. So held the Appellate Division, First Department, in its 3-2 December 29, 2015 decision in Schulman v. Miller.

That settlement stipulation required the husband to pay unallocated periodic child support for the parties’ two children, plus cost of living adjustments, as well as other expenses of each child, including education and college. It did not provide for the reduction or recalculation of the husband’s child support obligation upon the emancipation of the older child. The agreement did not allocate the husband’s child support obligation as between the children, nor provide a formula for a reduction in the event of one child’s emancipation.

Affirming the order of Supreme Court, New York County Justice Lori S. Sattler, the appellate court noted that the settlement stipulation did provide for a termination or reduction of certain of the husband’s financial obligations upon the happening of specified events, including, for example, his obligation to pay maintenance to the wife, his obligation to maintain medical insurance for each child, payments for car service, and the like. Thus, the settlement provision concerning medical insurance explicitly stated that the husband “shall have the right to terminate such coverage for either Child at the time she becomes emancipated.” The parties’ stipulation of settlement was an exhaustive, 62-page document. Both parties were represented by counsel during its negotiation (indeed, the husband himself is an experienced attorney).

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Father’s Frequent Weekday Visitation Precludes Mother’s 32-mile Relocation

Posted in Custody and Visitation

Children in balanceOn the night of August 24, 2013, the father received an email from the mother stating that she and the children had moved from East Hampton to Westhampton Beach—a distance of about 32 miles. Under their divorce settlement stipulation entered just 3 months earlier, it was agreed that the parties would share joint custody of their two children. The mother was to have residential custody of the children, subject to parenting time by the father from 4:00 p.m. to 6:00 p.m. on Mondays, Tuesdays, and Thursdays, from 4:00 p.m. to 7:30 p.m. on Wednesdays, and on alternate weekends (i.e., on 8 out of 11 days).

In September, 2013, the father moved to enjoin the mother from relocating. At the ensuing hearing, the father testified that he normally works from 8:00 a.m. until 4:00 p.m. on weekdays. He testified that it usually took him about five minutes after finishing work to drive to the former marital residence in East Hampton to pick up the children for visitation. He further testified that it now took him 50 minutes to drive from his home in East Hampton to the mother’s new home in Westhampton Beach.

The mother testified that she moved because she had voluntarily changed jobs from a bank located in Bridgehampton to a bank located in Medford, and that the move cut 30 minutes off her new commute in each direction. She testified that her total compensation at the new job was comparable to her total compensation at her old job. She further testified that she moved to be closer to her parents in Riverhead. She testified that the children saw her parents about twice a month when they lived in the former marital residence in East Hampton, and about once a week after the move to Westhampton Beach.

Sufflok County Supreme Court Justice Stephen M. Behar granted the father’s motion to enjoin the mother’s relocation. The mother appealed.

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Credits for Paying Home Carrying Charges During Divorce

Posted in Credits, Equitable Distribution

House on moneyAdjusting the financial rights between divorcing spouses for the payment of marital residence carrying charges while the divorce action is pending can be problematic. Claims for such adjustments are not always made and the results may be affected by other issues. Calculation of the credits may be illogical.

In its September, 2015 decision in Goldman v. Goldman, the Appellate Division, Second Department, modified the judgment of now-retired Suffolk County Supreme Court Justice William J. Kent, on the facts and in the exercise of discretion, to award each party a credit against the proceeds of the sale of the marital residence for 50% of the amounts they each expended after the commencement of the action on carrying charges related to the marital residence. Justice Kent had awarded no such credits.

Generally, it is the responsibility of both parties to maintain the marital residence during the pendency of a matrimonial action. Where a party has paid the other party’s share of what proves to be marital debt, such as the mortgage, taxes, and insurance on the marital residence, reimbursement is required.

Here, while both parties paid certain carrying charges related to the marital residence after the commencement of the action, the husband had paid the vast majority of these expenses. Since these expenses should have been allocated on a 50/50 basis, the Second Department modified the judgment and remitted the matter for a determination of the amounts that each party expended after the commencement of this action on such carrying charges, and for the entry of an appropriate amended judgment thereafter.

Michael W. Meyers, of the Law Offices of Clifford J. Petroske, P.C., now Petroske, Riezenman & Meyers, P.C., of Bohemia, represented the husband. Elizabeth Diesa and Joy Jankunas, of Tabat, Cohen, Blum & Yovino, LLP, of Hauppauge, represented the wife.

Child Support Calculations and the Significant Other

Posted in Child Support (C.S.S.A.)
Planning the budget

Planning the budget

To what extent, if any, should the courts look to step-parents and significant others to support the children of their mates? What effect should the financial arrangements between a parent and his or her new significant other (married or not married) have on the calculation of child support obligations?

Consider the November 4, 2015 decision of the Appellate Division, Second Department, in Geller v. Geller. In this case a father had petitioned for a downward modification of his $930/week child support obligation when two of his four children were emancipated.

After a hearing, Nassau County Family Court Support Magistrate Elizabeth A. Bloom determined that the father was now only required to provide support for the two youngest children, and then recalculated each parent’s pro rata share of the basic child support obligation pursuant to the Child Support Standards Act. When doing so, Magistrate Bloom also imputed income to the father for the various bills paid by the father’s employer. She determined that the father’s pro rata share of the basic child support obligation was $447 per week.

However, Magistrate Bloom deemed this amount to be “unjust or inappropriate” in light of the financial support the father was receiving from his girlfriend. Based on that, Magistrate Bloom increased the father’s formula support obligation by more than 45% to $650 per week ($33,800 per year). The father filed objections to the Support Magistrate’s order. His objections were denied by Family Court Judge Ellen R. Greenberg.

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Double-Dipping: The Interrelationship of Business-Based Distributive Awards and Spousal Support

Posted in Equitable Distribution, Maintenance

For the second time in six weeks the Appellate Division, Third Department, reduced an award of spousal maintenance for the failure to adjust for the distributive award based on the husband’s business. In its October 22, 2015 decision in Gifford v. Gifford, the Appellate Division, Third Department, modified a maintenance award because of the trial court’s failure to adjust the husband’s income for computation purposes to account for the distributive award to the wife based on the husband’s business. In September, in Mula v. Mula, the Third Department held that once valued, the income attributable to ownership of a professional practice may not also be the basis on which to award spousal maintenance (see, the September 14, 2015 blog post).

In Gifford, the parties in this divorce had stipulated a resolution of Equitable Distribution issues, including a $210,000 award to the wife based on the value of the husband’s geotechnical engineer business. After a trial on maintenance on counsel fees, Supreme Court Justice Vincent J. Reilly awarded the wife nondurational maintenance of $6,000 per month from January 1, 2014 through January 31, 2020, $3,000 per month from February 1, 2020 through June 1, 2022, and $800 per month thereafter, terminating upon either party’s death or the wife’s remarriage.

The Third Department held that Justice Reilley erred in utilizing the husband’s total average annual income of $332,431 for purposes of calculating a maintenance award, without making an adjustment for the distributive award of the company.

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Court of Appeals Restates Civil Contempt Rules

Posted in Enforcement of Support and Orders

In its October 20, 2015 decision in El-Dehdan v. El-Dehdan, New York’s highest court restates the elements of civil contempt, the burdens of proof needed to support a finding, and the effect of the assertion of a Fifth Amendment privilege against incrimination. Doing so, the Court of Appeals affirmed a 2013 decision of the Appellate Division, Second Department, which in turn upheld the finding of civil contempt made by Kings County Supreme Court Justice Eric I. Prus.

In January 2010, an Order to Show Cause was signed to bring on the wife’s motion to hold the husband in contempt for having violated a 2008 order that supposedly restrained the transfer of assets. The husband had transferred certain parcels of realty. In addition to scheduling a hearing on the contempt motion, a Temporary Restraining Order was issued directing the husband to deposit immediately with the wife’s attorney the sum of $950,000.00 “which is the sum of money he purportedly received from the transfer of [the property] 171 Ainslie Street, Brooklyn, New York and 64-17 60th Road, Maspeth, New York, minus the money paid for [the] real estate broker, transfer taxes and payment of the underlying mortgage.” The husband was personally served with this Order to Show Cause.

As it turns out, the 2008 order did not, in fact, prohibit the transactions in which the husband engaged. However, here, the husband was not found in civil contempt for having violated the 2008 order, but for violating the Temporary Restraining Order contained in the January, 2010 Order to Show Cause that looked to preserve marital assets and the status quo while the court considered whether the husband violated the 2008 order.

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Failing To Give Default Notice Precludes Counsel Fee Award

Posted in Counsel Fees, Enforcement of Support and Orders

The wife’s failure to send notice of default as required by the parties’ divorce judgment resulted in no award of counsel fees on her enforcement application. So held the Appellate Division, Second Department, in its August, 2015 decision in Taormina v. Taorminareversing the wife’s $7,781.25 counsel fee award by Westchester Supreme Court Acting Justice Janet C. Malone.

The wife had sought an award of a counsel fee pursuant to the parties’ judgment of divorce in connection with the husband’s alleged defaults as to certain obligations set forth in that judgment. The judgment, however, required the nondefaulting party to give notice of alleged defaults by certified mail. It was undisputed that the wife did not give such notice. Accordingly, the wife was not entitled to an award of a counsel fee pursuant to the terms of the judgment.

Moreover, as the record did not reflect that the husband’s defaults were “willful” within the meaning of Domestic Relations Law §237(c), that statute did not provide a proper alternative basis for the award of a counsel fee to the wife. Therefore, Justice Malone erred in awarding the wife a counsel fee.

Rocco V. Salerno, Jr., of Eastchester, represented the husband. Helene M. Selznick, of Somers, represented the wife.