May 2011

Parenting Time Calendar checked off.jpgNo two custodial arrangements are the same. They are as different as the children and parents themselves. As a result, the application of a presumptive child support award to the “deemed” custodial parent is inherently arbitrary.

Take the May 5, 2011 decision of the Third Department in Riemersma v. Riemersma. The issues in the parties’ divorce concerning support of their twins had been referred to Family Court Support Magistrate Jonathan A. Heussi. The Magistrate determined in his October, 2009 order that the mother was the custodial parent.

The mother was a State Trooper working seven 7:00 p.m. to 7:00 a.m. shifts out of every 14 days. She earned $87,857 annually. The father, an urban forestry program manager, worked weekdays from 8:00 a.m. to 4:30 p.m. He earned $50,392 annually.

The parents crafted their parenting plan so that each parent would care for the children while the other was at work. Overnights were divided equally. However, because of the mother’s night-shifts, the court determined that the children spend 65% of the time with their mother. As a result, Magistrate Heussi’s finding that the mother was the custodial parent for C.S.S.A. purposes was affirmed a year and a half later in this appellate decision.

Strictly applying the C.S.S.A. formula would have resulted in the father paying $442 bi-weekly as his base support obligation. The magistrate had determined that such an award would have been unjust and inappropriate. Instead, he awarded the mother $200 bi-weekly.

With joint or shared arrangements the identification of the deemed custodial parent should be based upon the “reality of the situation.” The appellate court agreed the mother should be deemed the custodial parent. While a mechanical comparison of hours was not countenanced, the overall time spent with each parent was to be considered. Here, presumably because the mother worked while the children slept, she spent more time “with the children.”

The appellate court also approved the monetary result, but criticized the Magistrate for his reliance upon each parent’s need to maintain a suitable residence for the children. The “Support Magistrate failed to specify the factors relied upon to deviate from the presumptively correct child support amount or the extent, if any, of the expenses justifying such a deviation . . . . Indeed, at the fact-finding hearing, defendant testified that he had not incurred any unusual or extraordinary expenses related to the care of the children.”

Furthermore, we have previously held that the costs of maintaining suitable housing and providing food and clothing for the children during custodial periods do not constitute extraordinary expenses that would justify a deviation from the statutory formula.

Nonetheless, based upon the appellate record, the Third Department was able to determine that the application of the presumptive formula would have been unjust and/or inappropriate based the non-monetary contributions of the father and the fact that the father’s income was substantially less than the mother’s.Continue Reading Applying the Child Support Formula in Shared Parenting Arrangements

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The May 5, 2011 decision of the Appellate Division Third Department in Munson v. Fanning, highlights the need for difficult discussions and prioritization before taking life-altering steps. It is also another call for the expanded use of the Collaborative Law Process.

In this case, the parties’ 12-year old daughter had been born after her parents had separated and divorced. The mother sought and permission to move with the child to California to join her new husband who had taken a new job. Saratoga Family Court Judge Courtenay W. Hall denied that relief, but revised the father’s visitation schedule to allow the mother to join her husband for extended periods during school recesses.

The appellate court reviewed whether the mother met her burden of proving by a preponderance of the credible evidence that the relocation was in the child’s best interests. Quoting the 1996 landmark decision of the Court of Appeals in Tropea v. Tropea, 87 N.Y.2d 727, 642 N.Y.S.2d 575, the court stated:

The factors to be considered in making such a determination include “each parent’s reasons for seeking or opposing the move, the quality of the relationships between the child and the custodial and noncustodial parents, the impact of the move on the quantity and quality of the child’s future contact with the noncustodial parent, the degree to which the custodial parent’s and child’s life may be enhanced economically, emotionally and educationally by the move, and the feasibility of preserving the relationship between the noncustodial parent and child through suitable visitation arrangements.”

The court recognized the healthy relationship the daughter developed the mother’s new husband, as well as her other children, all of whom were to reside in California. The step-father’s new job in California would allow her to stay at home and raise her children. The attorney for the daughter (formerly called the Law Guardian) supported the relocation.Continue Reading Relocation to California Denied Mother with 12-year Old Daughter

scissors contract 2.jpgWhat happens when only one provision of an agreement is invalid because it violates some statute or public policy?  The answer may depend on who the court wants to benefit, instead of consistently-applied rules of contract law.

Take, for example the April 5, 2011 decision of the Second Department in Duggan v. Duggan.  In that case, the parties had resolved their divorce by a surviving February 26, 2009 stipulation of settlement. Under that stipulation, the father, who had gross income of $475,000.00, agreed to pay a base monthly child support obligation of $8,000.00.  That amount deviated from the presumptive amount under the Child Support Standards Act (C.S.S.A.) of $11,929.54. The mother had no income.

Apparently, the stipulation also had a provision which called for the reduction in the father’s monthly obligation in the event his income was reduced.

In 2010, the mother brought a Family Court enforcement proceeding when the father ceased making the payments to which he originally agreed. The father raised the stipulation’s modification provision, arguing that his $8,243.00 annual reduction in income to $466,757.00 entitled him to a $76,800.00 annual reduction in child support (to $1,600.00 per month)!

Finding that the father’s interpretation of the stipulation modification provision was “not plausible,” Nassau County Family Court Judge Julianne S. Eisman denied the father’s objections to the Order of Support Magistrate Tejindar S. Kahlon which granted the mother’s arrears petition. Finding that the language of the Stipulation, as interpreted by the father, would violate the C.S.S.A., and was against the best interests of the children, the modification provision was ignored.

On appeal, the Second Department affirmed, holding that the Family Court had the authority to find that a provision in a stipulation of settlement violated the C.S.S.A. The appellate court found that a provision which called for a reduction in child support to 13% of the presumptive C.S.S.A. amount, merely because the father’s income dropped by 1.7% was “against the best interests of the children.”

It is noteworthy that the appellate court did not quote the startling modification provision. Equally noteworthy is that there was no discussion of any interpretation of the modification provision other than the one the Family Court considered implausible.

In order to have obtained the Judgment of Divorce, it would have been necessary to have made the recitation in the stipulation of settlement that the parties had been made aware of the C.S.S.A. and its presumptive formula in their case. D.R.L. §240(1-b)(h).  The parties would have had to have stated the reasons they agreed to deviate from the C.S.S.A guidelines. Specific Findings of Fact would have been made by the Supreme Court upholding those reasons.

It is understandable that the presumed failure of the Supreme Court to review the specific modification provision might not estop the mother from later attacking that provision when it was sought to be applied. Thus, the form language of a divorce judgment that “the parties are directed to comply with every legally enforceable term and provision” of the agreement incorporated into the judgment, does not mean that every provision is, in fact, legally enforceable.

What then is, or should be the impact of rendering unenforceable only one provision of a settlement agreement?Continue Reading Severability: When Only One Provision of a Divorce Settlement Agreement Is Invalid