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

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.
Continue Reading Cost of Living Adjustments to the Maintenance and Child Support Formulas

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.

Continue Reading Child Support Award Includes 25% of Father's Future Bonuses

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).

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

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.

Continue Reading Child Support Calculations and the Significant Other

The father petitioned the Family Court for enforcement of his rights to visit with his 13-year old son. Alternatively, the father asked to suspend his child support obligation. Instead, Westchester County Family Court Judge Hal B. Greenwald granted the mother’s cross petition to modify the prior order of custody and visitation and suspended the father’s visitation with the subject child.

The Appellate Division, Second Department, modified that order by suspending the father’s child support obligation, affirming the suspension of all visitation in its September 2, 2015 decision in Matter of Coull v. Rottman.

In determining custody and visitation rights, the most important factor to be considered is the best interest of the child. Here, the evidence demonstrated that despite the fact that the child had participated in therapy for several months in an effort to foster a relationship with his father, the child remained vehemently opposed to any form of visitation with the father. Furthermore, while the express wishes of the child were not controlling, they were entitled to great weight, particularly where the child’s age and maturity would make his or her input particularly meaningful. Here, the appellate court held that the Judge Greenwald was entitled to place great weight on the child’s wishes, since he was mature enough to express them. Judge Greenwald’s finding that further attempts to compel the child, who was then 13 years old, to engage in visitation would be detrimental to the child’s emotional well being had a sound and substantial basis in the record and, thus, would not be disturbed.

However, contrary to Judge Greenwald’s conclusion, the evidence justified a suspension of the father’s obligation to make future child support payments. The forensic evaluator testified that there was a “pattern of alienation” resulting from the mother’s interference with a regular schedule of visitation. The evaluator was unable to complete her evaluation because the mother refused to consent to the evaluator’s request to speak with mental health providers or school officials, and the child did not appear for his interview.

Moreover, after the father’s last visit with the child, the father continued to go to the exchange location on visitation days for several months. On one occasion, the mother and child appeared, but the mother said the child would not come out of the car. On the other occasions, neither the mother nor the child appeared, nor did the mother communicate with the father. The father was never told about the child’s medical needs or that the child had been hospitalized until after the fact, nor was he advised of any information about the child’s school or school events.

Further, the record reflected that the mother, who represented herself before Judge Greenwald, assumed an inappropriately hostile stance toward the father and witnesses who testified in his favor. Judge Greenwald noted in its decision that the mother stated “many times, that she will never allow [the father] to see the subject child and that she would do whatever it takes to keep the subject child away” from him.

Robin D. Carton, of White Plains, N.Y., attorney for the child.

College Fund 3Should a court reinterpret a divorce settlement agreement in light of New York’s public policy? It is one thing to void a contract provision as violative of that policy. It’s another to pretend that the contract was intended to be consistent with that policy.

Take, Monroe County Supreme Court Justice Richard A. Dollinger’s recent decision in Luken v. Luken. There, the parties’ June, 2014 separation agreement provided that the couple would jointly finance the college education for their sons. At the time of the agreement the older son had completed his first year of college; the younger son was in high school. The husband was to pay 70 percent of the college cost, the wife the remaining 30 percent, up to a combined cap of $42,000. The agreement also gave the husband a college expense credit against his child support obligation:

The father shall be entitled to receive a credit against his child support for payments for college educational expenses as set forth herein.

The agreement had obligated the father to pay child support of $33,996 annually for his two sons. The amount was calculated using the $141,000 C.S.S.A. “cap,” even though the couple’s combined family income substantially exceeded that amount (the wife estimated the husband’s income at $600,000).

Continue Reading Crediting Child Support With Payments for College Expenses

Father and Adult SonAt 18, the child becomes and adult. The parents no longer have custody. However, in New York, the parents’ duty to support does not end until the 21st birthday.

On other other hand, the parents’ duty to support may be relieved if a child attains economic independence through employment, entry into military service or marriage. Further, the child may be deemed constructively emancipated if, without cause, they withdraw from parental supervision and control.

Consider Baker v. Baker, a June 12, 2015 decision of the Appellate Division, Fourth Department. The parties’ son was constructively emancipated in June, 2012 when he moved out of the mother’s residence and into an apartment with friends in an effort to avoid the mother’s rules requiring him to attend school and not use illicit drugs. Until then, the father had been paying child support to the mother. However, after “being treated for withdrawal,” the son moved in with the father.

The question for the court was whether the child’s unemancipated status was revived entitling the father to collect child support. Supreme Court, Niagara County Justice Catherine R. Nugent-Panepinto denied the father’s application.

The Fourth Department reversed. The appellate court agreed with the father that the lower court erred in concluding that the child’s return to parental custody and control neither revived his unemancipated status, nor reinstated the support obligations of his parents

A child’s unemancipated status may be revived provided there has been a sufficient change in circumstances to warrant the corresponding change in status. . . . Generally, a return to the parents’ custody and control has been deemed sufficient to revive a child’s unemancipated status.

Although most of the cases concerning a revival of a child’s unemancipated status have involved a child’s return to the home that he or she abandoned versus the home of the noncustodial parent, the Fourth Department concluded that the return to the noncustodial parent’s supervision and control does not preclude a revival of unemancipated status.

The mother argued that because the father had stipulated to the earlier order that the child was emancipated, therefore termination the father’s support obligation, the father was required to establish an unanticipated and unreasonable change of circumstances. However, the Court held that despite the father’s stipulation that the child was emancipated, the child is not bound by the terms of that agreement, and the issue in this case was the child’s right to receive adequate support. Even assuming, arguendo, that the father was required to show an unanticipated and unreasonable change of circumstances, the appellate court would nevertheless have concluded that the child’s substance abuse treatment and return to parental custody and control constituted such a change of circumstances.

In our view, the reversion to unemancipated status under the facts of this case would promote the underlying statutory principles requiring parents to support children until they reach the age of 21.

The Fourth Department therefore reversed, granting that part of the father’s motion seeking an award of child support; remitting the matter to Supreme Court to calculate the amount of child support owed by the mother to the father.

Catharine M. Venzon, Esq., of Venzon Law Firm PC, of Buffalo, represented the father. Leonard G. Tilney, Jr., Esq., of Lockport, represented the mother.

OverstuffedIn contrast to its decision in Zaratzian, the subject of yesterday’s blog post, the Second Department, in Eagar v. Suchan, held the same day that a father was entitled to receive child support from a mother after their two children moved in with him.

In Eagar, the parties’ 1999 Settlement Agreement which was incorporated, but not merged into their judgment of divorce, contained separate provisions for child support and the payment of college expenses for the children. At the time, the then 7- and 5-year old sons of the parties lived with their mother.

After the parties’ two children began to reside with the father, he petitioned to terminate his child support obligation.

After a hearing, Suffolk County Support Magistrate (and former Judge) Barbara Lynaugh granted the father’s petition. She determined that the parties’ older child, then 21, was emancipated, and directed the mother to pay child support to the father for the parties’ younger child, then 19, in the sum of $344 per week. Family Court Judge Martha L. Luft denied the mother’s objections to the ruling.

The Appellate Division, Second Department affirmed. It held that Magistrate Lynaugh properly exercised her discretion when applying the Child Support Standards Act formula percentage to the combined parental income in excess of the statutory cap. “Here, the Support Magistrate properly articulated her reasons for applying the statutory percentages to parental income over the statutory cap, and her determination was not an improvident exercise of discretion.” It appears that the mother’s C.S.S.A.-adjusted annual income was approximately $105,000.00, which (applying the 17% formula) resulted in a $344.00 per week award.

The appellate court did not discuss the language of the parties’ Stipulation of Settlement, or why that language allowed for an affirmative award to the father.

Continue Reading “I’m Moving In With Daddy”: The Child Support Perspective (Part II)

Packed and Ready to GoAmong the hardest jobs of the matrimonial lawyer is to draft divorce settlement agreements that anticipate post-divorce events and then resolve them with precision. Two May 20, 2015 decisions of the Second Department highlight just how hard those jobs can be when it comes dealing with the child who switches his or her primary residence.

In Zaratzian v. Abadir, the appellate court affirmed a decision of Westchester County Supreme Court Justice John P. Colangelo that applied one couple’s Agreement to resolve their conflict in a manner neither party may have wanted.

Under their 2006 divorce settlement Agreement, the parties, both medical doctors, agreed to equally-shared time with their three children, and older daughter, then age 12, and 10 and 6-year old sons. Following the father’s remarriage in 2008 and the pregnancy of his new wife, the time-sharing arrangement broke down. The daughter resided only with the mother, the older son with the father and the younger son continuing to switch. Subsequent Family Court custody proceedings resulted in both boys living with their father.

Under the Separation Agreement, the father had agreed to pay the mother $1,500 per month in maintenance until the emancipation of one of the children. Until then, the father would pay an additional $1,500 per month in child support for all three unemancipated children. Upon the emancipation of one child, maintenance would stop, but child support would be increased to $1,750 per month. Upon the second emancipation, child support would be reduced to $1,000 per month.

The support Article of the Agreement contained the following typewritten provision:

Both parties agree to be bound by the provisions set forth in this Article III and each party agrees that neither party shall at any time make any application to modify the financial provisions of this Article III or the financial provisions of the divorce decree subsequently entered between the parties.

The Agreement defined various emancipation events, including:

Permanent residence away from the residence of the Father and the Mother. A residence at boarding school, camp, or college is not to be deemed a residence away from the residence of the Wife, and hence, such a residence at boarding school, camp, or college is not an emancipation event.

The emancipation Article also contained the following handwritten provision:

Notwithstanding any other term or provision contained in this agreement, in the event one or more of the children reside primarily with the Father, he shall be permitted to make any application he deems appropriate to modify his child support obligation as set forth in Article III and the resulting order shall supercede the terms of this agreement.

Following the Family Court proceedings, the mother moved in Supreme Court for an order relating to the payment of private school tuition for the daughter (she later asked for child support for the daughter computed under the Child Support Standards Act). The father cross-moved for an order requiring the mother to pay him C.S.S.A.-computed child support for the parties’ two sons.

Continue Reading "I'm Moving In With Daddy": The Child Support Perspective (Part I)

Legal feesIn its May 1, 2015 decision in Mura v. Mura, the Appellate Division, Fourth Department, affirmed an order of Monroe County Supreme Court Justice Richard A. Dollinger that enforced an ex-wife’s attorney’s charging lien against a fund from which child support arrears were to be paid.

The parties were divorced in 1993. The Monroe County judgment of divorce awarded the wife child support and ordered the husband to pay $25,226.72 in child support arrears that had accrued from the commencement of the divorce action through entry of the judgment.

For 16 years, the child support obligation was not enforced. In April 2011, the wife hired Mark Chauvin Bezinque, Esq., to recover the accumulated child support arrears that, with interest, totaled $549,403.62 as of September 2011.

At the time, the husband owned real property in Ontario County. Bezinque filed the judgment in Ontario County and commenced actions in both Ontario County and Monroe County to restrain the sale of the Ontario property. While those proceedings were ongoing, the husband sold the property in violation of a court order. Upon Bezinque’s motion, the husband’s share of the proceeds from the sale of the home was placed in escrow “in anticipation of a final judgment for unpaid child support.” Bezinque referred the wife to another law firm for the preparation of executions and levies against the escrowed funds held by the husband’s then attorneys, and requested payment of the outstanding balance of his legal fees from those funds. The wife did not respond to that request. Bezinque thereafter moved by order to show cause seeking, inter alia, a charging lien pursuant to Judiciary Law § 475 against the escrowed funds sufficient to cover his outstanding fees. The wife opposed Bezinque’s motion.

Continue Reading Attorney's Charging Lien Enforced Against Child Support Arrears