Divorce: New York - Recent Developments for the Legal Profession & the Public

The parties' 2008 Separation Agreement which resolved their divorce provided for joint legal custody of the parties' two children, with their primary residence being with the mother. Nine months after the divorce, the mother remarried and moved to her new husband's residence in Florida. The children remained in New York with their father.

The parties planned for a change in primary residence in their Separation Agreement. Specifically, if the children moved in with the father, the mother would not be obligated to pay periodic child support. (The father was paying $5,000 per month in child support while the children lived with the mother.) Moreover, the change in primary residence resulted in an "emancipation event" under the agreement, terminating the mother's obligation to equally share certain expenses of the children including private school tuition, various unreimbursed medical costs, extracurricular activities, summer camp and college tuition.

This proceeding involved the father's request for child support and for the mother to pay her pro rata share of expenses. The mother argued that as the agreement contemplated a change in primary residence from the mother to the father, there was no unanticipated change in circumstances sufficient to effect a modification of the parties' Agreement. No periodic child support obligation should be imposed upon her. Moreover, the mother claimed to have paid some $300,000 towards the children's expenses over the past three years.

In her March 28, 2012 decision in Rome v. Rome, New York County Supreme Court Justice Lori S. Sattler noted that "parents cannot contract away the duty of support." Similarly, the Court has noted that a parent may not eliminate or diminish his or her duty to support by way of separation agreement. The parties' agreement to waive support from each other "is not binding and against the public policy of providing for the support of children. The relevant inquiry is whether the children's needs are being met as their needs will take precedence over the Agreement."

While the Defendant asserts that the Plaintiff's application must be denied since he has failed to demonstrate a substantial change of circumstances, the Court finds that the Plaintiff does not need to meet that burden for this application to go forward. Under the terms of the Agreement, the Defendant is required to pay nothing on behalf of the children and has been under no obligation since some time in 2008. Such provision is not binding and against the public policy of providing for the support of children. The relevant inquiry is whether the children's needs are being met as their needs will take precedence over the Agreement.

Comment:The agreement which resolves a divorce often reflects a delicate balance among issues of spousal and child support and asset and liability division. Years after the execution, a court should be extremely hesitant to alter one of those balanced issues. The court should not ignore that various trades may may have been made to arrive at the overall agreement. Focusing on only one aspect of the agreement, even a waiver of child support, does the entire agreement a disservice.

Certainly, Justice Sattler properly decided to look at whether the needs of the children are being met. However, if the father is able, alone, to meet the reasonable needs of the children, consistent with the children's lifestyle, then the parties' agreement should be honored. Where the agreement merely allocates responsibilities between the parties, and does not prejudice the children, the parties' agreement should be upheld.

As the Court of Appeals has noted, there is a difference between an agreement that is directed solely to readjusting the respective obligations of the parents to support their child (Matter of Boden v. Boden, 42 N.Y.2d 210, 397 N.Y.S.2d 701 [1977]) and a court's power to order support where a child's right to receive adequate support is in issue (Brescia v Fitts, 56 NY2d 132, 138, 451 NYS2d 68 [1982]).

Not every waiver of child support, particularly one within the context of an overall divorce settlement between apparently wealthy spouses, should be void as against public policy. A separation agreement should be validated, unless it must yield to the welfare of the children.

Moreover, unless and until it is found that the needs of the children cannot be met if the waiver of support is honored, financial disclosure from the parent now not obligated by the agreement to pay support should be limited.

Allowing a state of facts to exist for a period of time without objection will often lead a court to continue those facts. Here, the court required a father to contribute to the cost of his son's private school education, where the child had been attending the school for some 10 years, even though a scholarship had been awarded in prior years.

In an April 24, 2012 decision, the Second Department reversed so much of the order of Westchester County Family Court Judge David Klein which denied a mother's objections to the order of Support Magistrate Esther R. Furman. That order failed to direct the father to pay his pro rata share of the private school expenses of the parties' child. The Second Department also reversed the sua sponte termination of the father's obligation to contribute to trial care expenses.

In Amos-Richburg v. Richburg, the parties, divorced since 2003, are the parents of one child born in or about 1995. When the child was three years old, the parties had jointly enrolled him in a private pre-kindergarten, where he received a full scholarship. The divorce judgment incorporated and continued the terms of a Family Court order of support, entered December 8, 1999, which, in part, obligated the father to pay the mother $102 biweekly for child care. The judgment of divorce and the prior order of support were silent as to the parties' respective responsibilities for the child's private school expenses in the event that he ceased to receive a full scholarship.

In June, 2008, the mother filed a petition seeking an upward modification of the father's child support obligations. She requested that the father be directed to pay his pro rata share of the child's private school expenses. The child, then 13, was enrolled in the same school since pre-kindergarten. However, the child no longer received a full scholarship, and the mother alone had been paying his expenses. After a hearing, the Support Magistrate, among other things, denied the mother's request to direct that the father pay his pro rata share of the child's private school expenses. The Magistrate, on her own motion, terminated the father's obligation to contribute to child care expenses. The mother's objections to these rulings were ultimately denied by the assigned Family Court Judge.

The Second Department reversed, holding that the the Support Magistrate improvidently exercised her discretion in denying the mother's request to direct the father to pay his pro rata share of the child's private school expenses. Pursuant to Domestic Relations Law § 240(1-b)(c)(7), the court may direct a parent to contribute to a child's education, even in the absence of special circumstances or a voluntary agreement of the parties, as long as the court's discretion is not improvidently exercised in that regard.

Here, the child had been enrolled in the private school with the father's approval, and performed well in that school. Thus, the appellate court ruled:

It was in the child's best interest to remain at that school, rather than having his academic and social life disrupted by a transfer to a different school.

Additionally, there was no evidence that the father's ability to support himself and maintain his own household would be impaired if he were directed to pay his pro rata share of the child's private school expenses.

Additionally, the Support Magistrate erroneously terminated the father's obligation to contribute to child care. Where the custodial parent incurs child care expenses as a result of employment, the noncustodial parent may be required to pay his or her proportionate share of such expenses as a supplement to the basic support obligation> Such child care expenses shall be prorated in the same proportion as each parent's income is to the combined parental income.

Here, the mother worked as a private banker, which often requires her to work until 11:00 P.M. or midnight during the week. She did not believe that the parties' 13-year old son was old enough to be alone for such long periods of time after school. Indeed, she was paying a babysitter to watch him three or four times a week. Under these circumstances, it was error for the Support Magistrate to, sua sponte, terminate the father's obligation to contribute to child care expenses. Accordingly, the father's obligation to contribute to child care expenses must be reinstated.

The parties should have addressed that what-ifs either in their 1999 Family Court or 2003 divorce court proceedings. If the father was unwilling to pay if the child's scholarship was terminated, at least that fact could have been memorialized. hindsight is easy.

Absent good cause, it is common for courts to act to minimize the disruption to the children of divorce. That may mean allowing the children to remain in the marital residence until graduation, or to remain in the same school, with the same friends. Here, the father provided no such good cause.

The mother was represented by Brett Kimmel of New York City.

In an April 26, 2012 decision, the Third Department affirmed the order of Delaware County Family Court Judge Carl F. Becker which failed to vacate or modify a prior order granting the mother custody of these unmarried parents' two children. The order also had refused to provide the father with visitation rights.

In Ildefonso v. Booker, the appellate court noted that the father's petition requested custody: "I want to see and be with my FAMILY & KIDS OR NOTHING. ALL TOGETHER."

The courts noted the father's anger and other mental heath issues and the history of domestic violence:

[T]he father 'has serious mental health issues, that he is in serious need of anger management, among other things, and that until he recognizes those needs and obtains that treatment it is not in these children's best interest[s] to have any contact with him whatsoever.' For example, there was testimony regarding, among other things, the father's animosity toward the mother, domestic violence incidents during which the children were present-some of which led to the father's conviction of various crimes and his incarceration-the father's lack of respect for court orders and his lack of insight into his conduct and emotional issues and their effect on the children. In our view, the evidence was sufficient to establish exceptional circumstances, and we discern no abuse of Family Court's discretion in determining that visitation with the father would be inimical to the children's well-being.

The mother was represented by Thomas F. Garner of Middleburgh. The father was represented by Teresa C. Mulliken of Harpersfield.

When your lawyer tells you that you are about to make a really bad deal, you disregard that advice at your peril.

That is one lesson to be learned from a split-decision of the Appellate Division First Department in its April 17, 2012 decision in Barocas v. Barocas. The court affirmed a decision of Supreme Court New York County Justice Ellen Gesmer which for the most part denied a wife’s attack on the prenuptial agreement she signed with her future husband in 1995.

Their marriage two weeks after the agreement was signed is now ending in divorce. Under the parties’ agreement, Deborah Barocas will not receive any maintenance (personal support). (The agreement contained no provision regarding the support for the parties’ two children.) Moreover, under the agreement, Deborah will also not share in any property accumulated by Victor during the marriage. Indeed, the agreement provided that Deborah would forfeit any gifts or jewelry she had been given by Victor before and during the marriage. Over their 15 years of marriage, Victor accumulated some $4,600,000 in assets, while Deborah had only $30,550 in an I.R.A.

Deborah was born in Guyana, the second of seven children. She arrived in the United States in 1981, at the age of twenty-one. She obtained a GED in 1982, and worked menial jobs. In 1989, she worked part-time as a receptionist for Victor’s family business. While working there, the parties began to date. In 1993, she moved into Victor's Sutton Place apartment. Other than sporadic attempts at small business ventures, Deborah did not work outside the home for the duration of the marriage. She has no further education and no special skills.

Now attacking that agreement, Deborah noted that she has no other assets or sources of income. She alleged that she can no longer work, as she is now 50 years old and that her husband had thwarted her efforts to get a college education and pursue a career during the marriage.

The three-judge majority of this five-judge appellate court upheld Justice Gesmer’s decision to uphold the property division provisions of the prenuptial agreement. With regard to those provisions, Deborah Barocas failed to establish that her execution of the agreement was the result of inequitable conduct on her husband’s part. Rather, the parties fully disclosed their respective assets and net worth.

Moreover, the agreement was reviewed by independent counsel. Indeed, Deborah’s own lawyer admittedly had told her that the agreement was “completely unfair” and advised against signing it. The fact that the husband’s attorney recommended the wife’s attorney, and that the husband paid Deborah’s counsel's fees, was insufficient to demonstrate duress or overreaching sufficient to base an attack upon the agreement.  Still further, the claim that Deborah believed that there would be no wedding if she did not sign the agreement, that the wedding was only two weeks away and that wedding plans had been made, was an insufficient basis to attack the agreement on the grounds of duress.

Although application of the provisions would result in plaintiff [husband] retaining essentially all the property, courts will not set aside an agreement on the ground of unconscionability where inequitable conduct was lacking and simply because, in retrospect, the agreement proves to be improvident or one-sided . . . . The circumstances surrounding the execution of the agreement disclose no issue of fact as to whether there was overreaching. We therefore adhere to the general rule that “‘[i]f the execution of the agreement . . . be fair, no further inquiry will be made’. . . .

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