Under Family Court Act §413-a, a party receiving public assistance, or making use of the State’s Child Support Enforcement Services, may request that the Support Collection Unit (“SCU”) review the order for an adjustment of a child support order in the event that there is a 10% change in the cost of living. The SCU, calculates the new order and mails it to the parties. If there is no objection, the adjusted order becomes final without further review by a court.

Either party, however, may object to the cost-of-living adjustment by making an application to the court. Where an objection is timely filed, the cost of living adjustment does not take effect, and after a hearing, the court may issue a new order of support determined in accordance with the Child Support Standards Act, or make a determination that no adjustment is appropriate. Notably, “Any order of support made by the court under this section shall occur without the requirement for proof or showing of a change in circumstances.” F.C.A. §413-a(c)

In Tompkins Cty. Support Collection Unit ex rel. Chamberlin v. Chamberlin, 99 N.Y.2d 328, 756 N.Y.S.2d 115, 786 N.E.2d 14 (2003), the Court of Appeals determined that F.C.A. §413-a authorizes the Family Court to review and adjust the underlying support order in accordance with the C.S.S.A., and not merely to decide whether or not the COLA amount should be applied.

Continue Reading Reconciling SCU COLA Adjustments With Modification Cases

Social Security CardTwo decisions this month of the Appellate Division, Second Department, tied the termination of post-divorce spousal support (“maintenance”) to a specific ages: 65 in Duval v. Duval; and 62 in Sansone v. Sansone.

In Duval, after 20 years of marriage, the wife commenced her action for divorce. The decision reports that “both parties are 56 years old.” During the course of their marriage, the parties had two children, one of whom was emancipated. In 1992, shortly before the birth of their first child, the husband became the sole source of financial support for the family. The wife was a stay-at-home mother prior to the commencement of the action. In approximately 1999, the wife’s father, an insurance agent, retired, and the husband took over his father-in-law’s insurance agency [how important is this fact to the decision?].

Continue Reading Tying Maintenance to Social Security

Calulator on 100s 6 redUntil the amendment of the Child Support Standards Act effective January 24, 2016 (D.R.L. §240[1-b][b][5][iii][I]; Laws of 2015, c. 387, §3), the rule had been that when a divorce court awards maintenance to a spouse, the amount of annual maintenance is to be deducted from the payor’s income when calculating parental income. However, for those same C.S.S.A. calculations, maintenance was not to be added to the recipient’s income. Thus, for example if in its award, a divorce court awarded a wife (the custodial parent) who had no other income $60,000 per year in maintenance from a husband earning $250,000 per year, the husband’s income for C.S.S.A. purposes would equal $250,000 less FICA, Medicare, and the $60,000 in maintenance, but the wife’s income would still be $0.

The recent amendment changed that anomaly. Effective January 24, 2016 , the alimony or maintenance actually paid or to be paid to a spouse is to be added to the income of the recipient when calculating parental income.

Although it does not expressly so state, it has been held that this amendment is to be applied to cases commenced on or after January 24, 2016, and not to cases commenced before that date. R.I. v. T.I., 2016 NY Slip Op 50664(U), 51 Misc. 3d 1215(A) (Sup. Ct. Kings 2016); C.G. v. F.G., 2016 NY Slip Op 26220, 53 Misc. 3d 229, 235-36, 34 N.Y.S.3d 882, 887-88 (Sup. Ct. Richmond 2016).

Until the amendment, the rule had been that it was error to include maintenance awards as income to the recipient when computing the child support obligation. Krukenkamp v. Krukenkamp, 54 A.D.3d 345 (2nd Dept. 2008); Wallach v. Wallach, 37 A.D.3d 707, (2nd Dept. 2007); Shapiro v. Shapiro, 35 A.D.3d 585 (2nd Dept. 2006); Lee v Lee, 18 A.D.3D 508 (2nd Dept. 2005).

In its November 9, 2016 decision in Castello v. Castello, the Second Department ruled differently. In that case, the court modified a 2013 divorce judgment by changing the child support calculation.

Continue Reading The Effect of Spousal Support on Child Support: Did the Second Department Jump the Gun?

No one is more affected by custody determinations than the children. On the other hand, the courts strain to prevent children from having to testify in front of their parents.

In Matter of John V. v. Sarah W., the Appellate Division, Third Department, in its October 20, 2016 affirmed a change of physical custody to the father. Doing so, however, the court noted that it had been improper to allow a child of 12 to testify in front of the parents’ lawyers in the absence of the parents.

In 2009, the parents had agreed to joint legal custody of their then seven-year old son, with primary physical custody to the mother and parenting time to the father. In July 2014, after the child reported to the father that the mother’s live-in fiancé “ha[d] been hitting” him, the father commenced this proceeding seeking primary physical custody of the child. Following a fact-finding hearing, which included testimony given by the child outside the presence of the parties but in the presence of counsel, Broome County Family Court Judge Rita Connerton modified the prior order of custody by awarding primary physical custody to the father and reasonable parenting time to the mother. The mother appealed and the Third Department affirmed.

Continue Reading Shielding the Child in Custody Proceedings

A Thermos® keeps hot liquids hot and cold liquids cold. But how does it know?

When drafting a divorce settlement agreement (or any other contract), it is common to include conditions. But will the parties know when a condition has been met? How will the parties know if a promise has been kept? Sometimes it is obvious, or a party may think so. And sometimes it’s not.

Take the Second Department’s October 19th decision in Rosner v. Rosner. There the parties entered into a divorce stipulation of settlement. Pursuant to that agreement, the parties agreed that the husband would have the exclusive right to continue to reside in the former marital residence until five years from the execution of the stipulation, at which time the marital residence would be sold. The husband was required to pay all the expenses of the marital residence, except for the mortgage. The wife was required to pay the mortgage on the marital residence, as well as to pay the husband $1,500 in child support.

The stipulation also provided that if, “prior to the five years from the date of the execution” of the stipulation, the husband was “financially unable to pay for the expenses” of the marital residence, the marital residence would be sold.

In December 2013, the wife moved, among other things, to recover certain real estate taxes which the wife paid on the husband’s behalf, and to direct the sale of the former marital residence. After a hearing, Westchester County Supreme Court Justice Janet C. Malone granted those branches of the wife’s motion. The husband appealed.

A court should interpret a stipulation of settlement in accordance with its plain and ordinary meaning. Where such an agreement is clear and unambiguous on its face, the intent of the parties must be gleaned from the four corners of the instrument, and not from extrinsic evidence.

The Second Department affirmed, holding that the wife had established that the husband “failed to pay certain real estate taxes on the former marital property, as required by the stipulation. Thus, pursuant to the clear and unambiguous language of the stipulation, the Supreme Court properly directed that the former marital residence be sold.”

Comment: Here, the parties’ agreement could have said that if the husband fails to pay the required expenses, the marital residence would be sold. But it did not. Under the parties’ agreement, the sale was not triggered by a mere failure to pay, but only if the husband was “financially unable to pay for the expenses” of the marital residence. The opinion does not reveal whether the record demonstrated that inability. However, equating “failure” with “inability” as a matter of contract construction as a matter of law appears to be a stretch.

“Unable” is a loaded word. It requires that a judgment be made. Perhaps the parties would have been better served by setting out the test for inability. How will the parties know when the husband is “financially unable to pay for the expenses?”

The husband represented himself. The wife was represented by Brett Kimmel, P.C., of Manhattan.

In the absence of some other compelling factor, where a noncustodial parent’s child spends 33 to 40 percent of the time with that parent, a reduction in child support from the presumptively correct formula amount is not warranted. So held Ontario County Family Court Judge Stephen D. Aronson in his October 4, 2016 decision in T.M. v. J.K.

Here, the parties were the biological parents of one child born in 2001. The mother filed a petition seeking child support. Following a hearing, the support magistrate concluded that the father’s biweekly support obligation according to the Child Support Standards Act (CSSA) formula would be $396. However, the support magistrate also found that application of the CSSA formula would be inappropriate because the child spent at least 35 to 40 percent of the time with father. This, the support magistrate held, constituted an amount of time sufficient to justify deviating from the formula, awarding the mother $270 biweekly.

The mother filed objections to the support magistrate’s order, alleging that the significant discrepancy in the parties’ financial resources and the support magistrate’s misallocation of time spent with each parent warranted imposing the formula. Specifically, she contended that the father had more disposable income, fewer expenses, and more resources. She also asserted that she has more debt, including a credit card balance (consisting of charges needed to cover her expenses) and a large school loan. It was also noted that the father paid no child support (apparently by agreement) from 2006 through 2015. (The parties did not dispute the support magistrate’s formula calculation, although Judge Aronson found the amount to be incorrect.)

Continue Reading No Child Support Formula Reduction for Father Who Has Child 33-40% of Time

Collection of popular social media logosWith the increasing use of social media evidence, what may a lawyer do to gather the evidence (or to prevent it from being gathered)? More and more, social media is finding its way into court cases. Family law matters may be leading the way.

A 2013 Third Department decision affirmed the imposition of an order of protection against a mother prohibiting her from posting any communications to or about the children on any social network site (prior blog post). Several decisions have made use of material posted on Facebook (see, e.g., Terzani [2014]; Elissa N. [2013]; B.M. [2011]). A 2015 case authorized Facebook as a method of court-approved substituted service of a divorce summons. A 2014 Family Court case authorized such service of a child support petition (prior blog post).

Continue Reading May Your Spouse’s Attorney Ethically Access Your Facebook Page?

On August 30th, the state’s highest court overruled its prior holdings and expanded the definition of parent to grant a standing to seek custody to a domestic partner who agreed with the biological parent to the conception of a child and the raising of the child together. That decision in Matter of Brooke S.B. v Elizabeth A.C.C. was quickly followed by the decision of the Appellate Division, Second Department in Matter of Frank G. v Renee P.-F. 

In the September 6th decision of the Second Department, Joseph and Frank were domestic partners who lived together for some five years. Together they asked Joseph’s sister, Renee, to act as a surrogate and give birth to the child resulting from Renee’s being impregnated with Frank’s sperm. The surrogacy contract contemplated that Renee would surrender her parental rights in order for Joseph to adopt the child. The understanding contemplated that Renee would remain a part of the child’s life.

Continue Reading Domestic Partner of Biological Father May Seek Custody

What happens when a deceased father failed to maintain life insurance for the benefit of his ex-wife and the children of the marriage entitled to receive support? Is there a claim, against whom, and for how much?

Those were the questions answered by the Appellate Division, Second Department, in its August 31, 2016 decision in Mayer v. Mayer.

There, the plaintiff (mother) was the second wife of Paul S. Mayer (father). Pursuant to their 2000 judgment of divorce, the father was, among other things, obligated to pay child support and educational expenses for the children of that marriage, Alanna and Matthew. The judgment of divorce also provided that the father was to maintain a term life insurance policy in the face amount of $1,000,000 for the benefit of Alanna and Matthew, with the mother being named as trustee on their behalf, “until such time as his support obligation is fully satisfied.”

In 2001, the father married Kristen and thereafter had two children, Jonah and Ryan.

In 2005, due to the father’s claimed inability to pay the premiums on the $1,000,000 policy required under the judgment of divorce, the policy was converted into two policies insuring his life, both of which were issued by New York Life. One policy, with a face amount of $200,000, listed the father as the owner and the mother as the beneficiary. The other policy, with a face amount of $100,000, listed the mother as both the owner and the beneficiary. The mother paid the premiums on the $100,000 policy.

In 2006, the mother moved in the Family Court to have the father held in contempt for, among other things, failing to maintain the $1,000,000 policy required by the judgment of divorce. The Family Court found the father to be in contempt and directed him to comply with the life insurance provision of the judgment of divorce. However, apparently the father could not obtain a new policy in the amount of $1,000,000 because of ill health.

Continue Reading Redressing the Failure to Maintain Life Insurance Required by Divorce Judgment

In its August 24, 2016 decision in Maddaloni v. Maddaloni, the Appellate Division, Second Department, upheld the rulings of Supreme Court Suffolk County Justice Justice Carol Mackenzie that invalidated the all-but-complete maintenance waiver contained in a 23-year-old postnuptial agreement, awarding the wife maintenance for 10 years. The appellate court also upheld Justice Mackenzie’s award to the wife of 25% of the $2,000,000 appreciation during the marriage in the value of the husband’s pre-marital business, Maddaloni Jewelers of Huntington.

The Maddalonis were married in January, 1988. At the time of the marriage, the husband owned several cars, a house, and a jewelry business, and he was in contract to buy a shopping center. On August 22, 1988, less than eight months after the parties were married, they experienced marital difficulties and entered into a postnuptial agreement. Among other things, this agreement provided that, in the event that the parties divorced after the first five years of marriage, the wife agreed to accept the sum of $50,000, payable in five equal annual installments of $10,000, “in full satisfaction of any and all claims of whatsoever kind and nature she may have at that time for past or future support or for distribution of assets.”

Continue Reading Maintenance Provision of Postnuptial Agreement Voided; Wife Awarded 25% of Appreciation of Husband’s Premarital Business