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

In its July 5, 2017 decision in Decillis v. Decillis, the Appellate Division, Second Department, recognized, but significantly reduced a credit against a formula child support obligation for the father’s extraordinary visitation travel expenses.

The parties were the parents of a child born in 2003. The mother filed a petition for child support. After imputing annual income of $43,000 to the mother, Suffolk County Family Court Support Magistrate Kathryn L. Coward determined that the father’s formula basic child support obligation would be $572 biweekly (grosses up to income of $94,729 per year). However, after gaving the father a $168 biweekly credit to compensate him for the “extraordinary” expenses associated with visitation, the Magistrate directed him to pay child support in the sum of $404 biweekly.

The Second Department first found that the Support Magistrate properly imputed $43,000 of income to the mother based upon her prior income, her choice to engage in only part-time employment, and her current living arrangement, in which she did not pay rent or related housing expenses.

However, the appellate court found that the Support Magistrate improvidently exercised its discretion in awarding the father a $168 credit against his child support obligation $168 for the “extraordinary” expenses associated with visitation, including $67 for travel expenses.

Continue Reading Travel Expenses Credit Against Child Support Reduced on Appeal

In a recent decision of the Appellate Division, Fourth Department, in Holeck v. Beyel, 145 A.D.3d 1600, 43 N.Y.S.2d 816, the court upheld a direction to a disabled father (the non-custodial parent) to apply to the Social Security Administration to change representative payee of the children’s social security disability (SSD) benefits from the father to the custodial mother. The appellate court also upheld the denial of the father’s request for a reduction in his support obligation by virtue of his loss of the SSD benefits for the children.

Generally, when a disabled parent is qualified for Social Security disability benefits, the children may also qualify to receive benefits on the disabled parent’s work-record. Eligible children can be a biological, adopted or stepchildren. Normally, benefits stop when the child reaches age 18 unless they are disabled. However, if the child at age 18 is still a full-time student at a secondary (or elementary) school, benefits will continue until the child graduates or until two months after the child becomes age 19, whichever is first.

Continue Reading Child Support and Social Security Disability Payments Received for the Children’s Benefit

It appears that the tremendous burden placed on the Appellate Division, Second Department, to work through its caseload has often led to opinions which leave you wanting to know a little more of the facts so you can put the case into perspective.

Take the the Second Department’s May 31, 2017 decision in Fiore v. Fiore, where the lower court’s opinion was modified to increase a father’s college obligation and which determined summer camp to be the equivalent of child care.

After nine years of marriage and one child, the parties settled their divorce action by an amended agreement that was incorporated into their 2000 Judgment of Divorce. Included among the settlement’s provisions were that the father would pay $12,289 annually for basic child support; that the parents would each pay their pro rata share of unreimbursed medical expenses; and that the father would pay 58% of the cost of day care.

In 2014, the mother moved for upward modification of basic child support, and other child support-related relief, including contribution toward the child’s summer camp and college expenses. Supreme Court, Nassau County Justice Julianne T. Capetola denied the upward modification, denied summer camp expenses, and limited the father’s obligation to pay college expenses to $5,000 per semester.

On appeal, the Second Department upheld the denial of an increase in the basic child support obligation. The mother had failed to meet her burden of proving that there had been a substantial, unanticipated, and unreasonable change in circumstances resulting in a concomitant need, or that the settlement was not fair and equitable when entered into. This was the required burden as the amended stipulation of settlement was entered prior to the effective date of the 2010 amendments to Domestic Relations Law §236(B)(9)(b)(2), when the burden was lessened.

Continue Reading Appellate Court Increases College and Child Care Expense Obligations

Whether by agreement or court decree, it is common for divorced parents to be obligated to contributed to their child’s college education tuition, room and board expenses. How is that obligation computed when a child receives financial aid?

Cases have held that scholarships, grants and aid for which the student has no repayment responsibility are to be subtracted before computing the parents’ obligations. First, the total cost of attending college should be calculated. Next, a court should determine the percentage of that total cost which is covered by financial aid. That percentage is applied to the separate tuition and room and board portions of the total expense. Finally, the parents’ shares of each portion, after deducting the pro rata financial aid, is to be calculated based upon each parent’s share of of responsibility.

For example, if tuition is $12,000 and room and board is $8,000, totaling $20,000, and financial aid is $15,000, or 75% of the total college cost, the net tuition after pro rata financial aid would be $3,000. The father’s pro rata tuition obligation should then be applied to that amount to determine his contribution to tuition. Matter of Yorke v. Yorke (2011).

The question remains what forms of financial aid get subtracted. In Yorke, the Appellate Division, Second Department, held that Stafford loans should not have been subtracted. Stafford loans (Direct Subsidized Loans) are federal student loans borrowed through the Direct Loans program that offer undergraduate students a low, fixed interest rate and flexible repayment terms.

In determining the parents’ respective obligations towards the cost of college, a court should not take into account any college loans for which the student is responsible. Therefore, any loans for which the child is responsible should not have been deducted from the college costs prior to determining the father’s pro rata share of those costs. As held in the Second Department’s decision in Matter of Rashidi v. Rashidi, (2013):

A parent’s share of college expenses for a child should be based on the total cost of tuition, room and board, college fees, and books and miscellaneous expenses as estimated by the university attended by the child, less only the sum of all nonrepayable scholarships, grants, and work-study payments or credits.

In its June 7, 2017 decision in Mons Pinto v. Pinto, the Second Department made the waters a little murkier when holding that Supreme Court, Westchester County Justice Janet C. Malone correctly determined a parent’s share of the children’s college expenses, as well as the credit towards his basic child support obligation to which he was entitled, based on “the total aggregate cost of tuition and room and board, less the sum of scholarships, grants, and federal subsidized loans.”

The appellate court did not indicate whether the issue of student loans was, in fact, involved in the case. However, the language used by the court appears to be a departure from prior decisions.

Annette G. Hasapidis, of South Salem, NY, represented the father. Lawrence B. LaRaus, Buonamici & LaRaus, LLP, of White Plains, represented the mother.

The words Welcome Home written on a old brown diary paperThe divorced couple’s child moved out of the mother’s home when he was 18, established his own residence, and began paying for all of his own expenses. Thereafter, the father’s petition to terminate his support obligations was granted.

In September 2013, the child returned to the mother’s home. The mother sought to reinstate and modify the father’s support obligation, alleging that the child’s returning home constituted a change of circumstances.

After a hearing, Richmond County Family Court Support Magistrate Janele Hyer-Spencer determined that the child’s unemancipated status had been revived. The Magistrate calculated the father’s child support obligation based upon an imputed income of $103,310, awarding arrears totaling $29,752.92.

The father filed objections that were denied by Family Court Judge Arnold Lim. The father appealed.

In its June 14, 2017 decision in Monti v. DiBedendetto, the Appellate Division, Second Department held that the Support Magistrate had properly determined that the child was no longer emancipated.

Emancipation of the child suspends a parent’s support obligations. Children of employable age are emancipated if they become economically independent of their parents through employment, and are self-supporting. A child’s unemancipated status may be revived provided there has been a sufficient change in circumstances to warrant the corresponding change in status.

Here, the record supported the Support Magistrate’s conclusion that the child was no longer economically, nor constructively emancipated. The evidence demonstrated that the child, who was enrolled in and attending college, voluntarily returned to the mother’s home in or around September 2013. Although the child was employed part-time and received an annual sum of $30,000 from a personal injury settlement, the evidence also demonstrated that the child was saving that money for future use and was not utilizing any of that money toward his own living expenses. The mother paid for all of the household expenses and food, as well as for the child’s car insurance, cell phone service, clothing, and personal items.

As a result, reinstatement of the father’s support obligation was proper.

Matthew S. Zuntag, of Staten Island, represented the father. Pamela Seider Dolgow and Elizabeth I. Freedman of the office of Zachary W. Carter, New York City Corporation Counsel, represented the mother.

 

JengaIt is common in agreements, and often the case in judicial decisions, for the parent paying periodic child support to receive a credit against those payments for college room and board expenses paid by that parent. May parties agree that the credit exceed the amount allocated by the parties to the support of the particular child attending college? No, (probably) said the Appellate Division, First Department, in its April 6, 2017 decision in Keller-Goldman v. Goldman.

The parties entered into a Stipulation of Settlement and Agreement that resolved all issues surrounding their separation. As may be relevant to the court’s determination, although the parties had four unemancipated children, the agreement only provided for support for the three children for whom the wife was deemed the custodial parent (the parties were to share equal time with these three). The husband retained custody of the fourth child, but agreed to receive no support for him from the mother. The opinion noted that had the parties not negotiated the issue of child support, the mother stood to collect $5,000 per month in child support payments, pursuant to the Child Support Standards Act, a fact acknowledged by the agreement. Instead, she agreed to monthly child support payments of $2,500.

Paragraph 10.3 of the parties’ agreement provided for a graduated reduction in the father’s child support payments upon the emancipation of each of the three children. Upon the first emancipation his monthly payment would be reduced by $350 to $2,150 per month; and upon the second emancipation the payment would be reduced to $1,462 per month.

The agreement provide for a room and board credit at paragraph 10.4, immediately following the support reduction schedule:

During the period in which a Child is attending a college and residing away from the residences of the parties and [the father] is contributing towards the room and board expenses of that Child, [the father] shall be entitled to a credit against his child support obligations in an amount equal to the amount [the father] is paying for that Child’s room and board. The credit shall be allocated in equal monthly installments against [the father’s] child support payments.

Continue Reading Uncapped Room and Board Credit Violates Public Policy

familyUnder what circumstances may a step-parent’s income and assets be considered by a court when deciding whether awarding the formula amount of support would be unjust or inappropriate? When may a court deviate from the formula because of a parent’s obligation to support the children of another relationship?

These were the issues discussed by the Appellate Division, Second Department, in its April 5, 2017 decision in Hall v. Pancho.

The parties, who were never married, had one child in common, age 11. After a hearing to determine the amount of the father’s modified child support obligation, Nassau County Family Court Support Magistrate Elizabeth A. Bloom found that were the formula set forth in the Child Support Standards Act (the CSSA) to be applied, the father’s pro rata share of the basic child support obligation would have been biweekly payments in the sum of $839.76. The father argued that the full formula should not be awarded because of his need to support the children of his marriage. Magistrate Bloom apparently agreed, deviating downward from the CSSA formula and determining the father’s child support obligation would be $425.00 biweekly. The mother filed objections to the Support Magistrate’s order, which were subsequently denied by Family Court Judge Thomas A. Rademaker. The mother appealed.

Continue Reading Considering a Step-Parent’s Income and Assets on Child Support Awards

Two people fighting over money / business transaction / giving & taking money / shopping / divorce / power struggle / etc.

A decision last week of the Appellate Division, Second Department, points out that the rules concerning the recovery of overpayments of child support may not always be logical, and in the end may not best benefit the children the support was intended to benefit.

The parties in McGovern v. McGovern had executed a stipulation in 2007 that was incorporated but not merged into their judgment of divorce. The stipulation required the father to pay the mother child support each month for the parties’ two children. That obligation was to continue until, as is here relevant, one of the children began attending a residential college, at which point the child support obligation would be reduced. The stipulation also required the father to pay 60% of the children’s educational expenses, but allowed him to deduct any room and board payments which he made from his child support obligation.

In February 2014, the father filed a petition with the Westchester County Family Court seeking a downward modification of his child support obligation on the ground that the older child had started college in September 2011. The father also alleged that from September 2011 to February 2014, he overpaid child support because the Support Collection Unit failed to reduce his child support payments after the oldest child started college. As a result, the father requested an overpayment credit towards his child support obligation.

Continue Reading Recoupment of Child Support Overpayments From Add-on Expenses (College); Not Future Support

stamp "Evidence"It is understandable that parents who “cannot afford” a lawyer will attempt to represent themselves in Family Court child support proceedings. Moreover, the Family Court is remarkably able to apply the law and make its determinations of issues presented by unrepresented parties. However, the fact that a party does not have a lawyer does not excuse following the rules nor presenting the proof needed by the Court to make those determinations.

Take the recent child support decision in Matter of Carol A.S. v. Mark H. There, the mother commenced a proceeding against a father in Kings County Family Court in order to establish his paternity of a college-attending daughter (under 21) and to provide support for the child. (A DNA test established was administered that established the father’s paternity.)

The decision of Judge Xavier E. Vargas went to pains to discuss the history of the case, noting the various adjournments that were granted in order to allow both parents the opportunity to gather the documentation the court needed for each party to establish his or her positions. The mother wanted the father to reimburse her for the college expenses paid for the daughter. The father claimed he regularly had been giving the daughter $600 per month by depositing that sum directly to the daughter’s account. He wanted credit for making those payments.

Continue Reading Representing Yourself In Child Support Proceedings Has Its Risks

A court gavel on 100 bills - legal concept

In its December 30, 2016 decision in Peddycoart v. MacKay, the Second Department reduced a father’s obligation to pay child support from $542 to $378 per week by holding that the Family Court should not have imposed the support obligation on the parents’ income in excess of the C.S.S.A. “statutory cap” (then $141,000).

The parties, who were never married, had one daughter together, born in 2009. The father signed an acknowledgment of paternity less than nine days after the child was born. The parties did not have an order of child support for approximately six years. In 2015, the mother filed a petition against the father seeking an award of child support. After a hearing, Support Magistrate Barbara Lynaugh determined that the mother had income of $36,112 and that the father had income of $166,096, for combined parental income of $202,208, exceeding the cap by $61,208.

Continue Reading Imposing Child Support on Income Over Cap Not Warranted