Modification-agreements-and-stipulations

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

Complaining too much about visitation violations may just cause you to lose joint custody. Such may be the lesson to be learned from the September 19, 2013 decision of the Third Department in Green v. Green.

The parties were the parents of a son born in 2004 and a daughter born in 2008. Pursuant to a prior order of the Family Court, the parents shared joint custody of their children, with the mother having primary physical custody.

Within days of the entry of that prior Family Court custody order, the father filed the first of six petitions alleging that the mother was in violation of the custody order. The five other violation petitions were filed over the next several months. The father also filed a petition seeking modification of the prior custody order.

Following a hearing, Judge Dennis K. McDermott of the Madision County Family Court found that there had not been a change in circumstances warranting modification of physical custody. However, because the acrimonious relationship of the parties rendered joint legal custody inappropriate, Judge McDermott awarded sole legal custody to the mother. Judge McDermott also made certain adjustments to the visitation schedule.

On appeal, the Third Department accorded Judge McDermott’s factual findings appropriate deference. The appellate court found no error in the determination that the father failed to establish a change in circumstances sufficient to warrant a change in physical custody.

Moreover, the Third Department found awarding sole legal custody to the mother was appropriate:

[B]ased upon this record, it is evident that the parties are unable to effectively communicate and cooperate with one another. Therefore, upon consideration of all of the circumstances, we conclude that Family Court properly amended the prior order to award sole legal custody to the mother.

Finally, the Third Department found that the adjustments made to the visitation schedule were supported by the record.

Comment: Credibility is greatly affected by demeanor. I am sure both parties in the above case perceived the righteousness of their own positions. However, the manner in which one parent handles perceived violations by the other parent and then how that parent approaches the court are critical to ultimate determinations. No court likes to see a parent crying to it every single time there is a perceived violation. Good faith, maturity, patience and reasonable efforts must be shown.

Many recent decisions have shown the courts’ sensitivity to each parent’s responsibility to foster the relationship between the children and the other parent. However, it is also clear that each parent must meet the other at least part way.

In this case, Theodore W. Stenuf, of Minoa, represented the father. Mark A. Schaeber, of Liverpool, served as Attorney for the Children.

A court’s reduction of a divorce judgment’s child support obligations, incorporated from a settlement agreement that survived the entry of that judgment, does not result in a modification of the agreement. The shortfall may still be collected through a separate action to enforce the contract.

As Nassau County Supreme Court Justice Leonard D. Steinman noted in his July 1, 2013 decision in N.S. v. A.S., N.Y.L.J. July 22, 2013, such has been the law of this State for over 70 years:

A modification of a divorce judgment or decree providing that a party is to pay a sum less than he agreed to pay does not relieve such party of any contractual obligation.

In this case, the parties entered a Stipulation of Settlement in January, 2003,resolving all issues stemming from their divorce proceedings. The parties agreed that the agreement would be incorporated but not merged into their judgment of divorce.

Among the issues resolved were custody and child support for their son, then 2½ years old. It was agreed that the wife  would receive child support from the husband in the amount of $34,000 per year ($2,833.33 per month) for 48 months and thereafter the sum of $39,146 per year ($3,262.16 per month) The increased amount coinciding with the cessation of  four years of maintenance payments to the wife at $3,833.33 per month.

The agreement reflected the ex-husband’s 2001 income was $312,121. The agreement, itself, provided that if the ex-husband’s income were to dip below $250,000, the parties would attempt to renegotiate the maintenance amount. If unsuccessful, the ex-husband could seek a downward modification of his maintenance obligation from the court. The agreement did not provide to the ex-husband with a concomitant right to seek a downward modification of his child support obligations in the event of a reduction in his income.

In April 2004, ex-husband became unemployed and subsequently took a position at the reduced salary of $150,000. In March 2006, the ex-husband moved for a downward modification of his child support and maintenance obligations (by that time, the ex-husband’s maintenance obligations had expired, but he claimed that there were arrears owed to his ex-wife based which he looked to cancel).

Continue Reading Contract Enforcement Available Despite Successful Downward Modification of Child Support

It is common for a divorce settlement agreement to provide that a child will be emancipated if he or she leaves the residence of the custodial parent. The result is the stated reduction in child support payments to the custodial parent. However, if the child not only leaves the custodial parent, but moves in with the non-custodial parent, may that parent obtain child support from the former custodial parent? That will depend on the language, or more particularly, the lack of language of the parents’ agreement.

Such is the lesson of the July 10, 2013 decision of the Appellate Division, Second Department, in Samuelson v. Samuelson. In that case, the parties were divorced in January, 2011. The divorce judgment incorporated the parties’ 2009 surviving stipulation of settlement.

Under that agreement, the father agreed to pay the mother basic child support of $1,150 per month for the parties’ two children until the occurrence of an “emancipation event,” defined to include a “change in custody.” The stipulation further provided that in the event one child was emancipated, the father’s basic child support obligation would be reduced to $846 per month.

Two months after the divorce judgment was entered, the parties agreed to transfer custody of their son from the mother to the father. Several months later, the father moved for an award of child support from the mother, to be “credited against my child support payments re our minor daughter.” The father claimed he was on the verge of personal bankruptcy.

Supreme Court Queens County Justice William Harrington denied the father’s motion, accepting the mother’s argument, and finding that the parties’ obligations were set by their agreement. The father failed to establish an unanticipated and unreasonable change in circumstances, or that the child’s needs were not being met.

The Second Department affirmed. The parties’ agreement was binding. Since the stipulation set forth the plaintiff’s child support obligation in the event of a change of custody of one of the children, a change in custody of one of the children could not be considered unanticipated.

Continue Reading Child Support: When One of the Children Switches Homes

Particularly in light of the allegations that the mother threatened to retaliate against her 14-year old daughter’s testimony supporting the father, it was an abuse of discretion for the trial Judge to require the daughter to testify in open court in this custody modification proceeding. The girl should have been interviewed by the judge in chambers without her parents and their lawyers being present.

That sentiment was noted by the Appellate Division, Third Department, in its June 27, 2013 decision in Casarotti v. Casarotti that affirmed Madison County Family Court Judge Biagio DiStefano‘s order changing primary physical custody of the girl from the mother’s residence in New York to the residence of her father in California, despite the presence of the daughter’s 18- and 20-year old siblings in New York.

In this case, the parties were the divorced parents of two daughters (born in 1992 and 1998) and a son (born in 1994). The younger daughter was the only subject of this proceeding.

The family had lived together in northern California until the parties’ separation in 2000. At that time, the mother moved with the three children to New York. The parties later consented to joint custody of the children in a stipulation that was incorporated, but not merged into their 2007 judgment of divorce. In accordance with the stipulation, the mother maintained primary physical custody of the children in New York. The father, who remained in California, was granted liberal parenting time during weekends, winter holidays and summer vacations.

In July 2012, the father commenced this custody modification proceeding, seeking primary physical custody of the child. He alleged that the two older children had moved out of the mother’s house, the mother was emotionally abusive to the youngest child, and that the child now wanted to live with him in California.

Judge DiStefano held a hearing at which the parties, the 14-year-old child and her 20-year-old sister testified. Judge DiStefano granted the father’s petition and awarded him primary physical custody, while otherwise maintaining joint custody.

Continue Reading 14-Year-Old Daughter Should Not Have Been Made to Testify in Front of Parents in Custody Modification Proceeding

The emancipation of a child does not automatically result in the downward modification of an unallocated order of child support. Rather, the support payor has the burden of proving that the existing  amount of unallocated child support is excessive based on the needs of the remaining unemancipated children.

Such was the holding of the Appellate Division, Second Department, in its May, 2013 decision in Lamassa v. Lamassa.

In this case, the parties had entered into a stipulation of settlement of their divorce action that was read into the record. Then when the parties eldest child turned 18, the father unilaterally, and without a court order, reduced his child support payments. He then further reduced the amount of the support payments each time one of the parties’ remaining three children reached the age of 21 years.

Only then did the father move, in effect, to reduce the amount of child support payments and to cancel child support arrears accruing before that application.

At the hearing before Supreme Court, Richmond County Court Attorney/Referee Fay M. de Grimston, the father testified that as each of the children reached 21 years of age, he reduced the amount of support payments. He claimed that the mother had accepted the checks from him without objecting orally or in writing. The mother denied that she agreed to a reduction of the support payments. She claimed that she did not receive any checks directly from the father, but rather from the children. She asked the children to tell the father that the amount was wrong.

The mother also testified about an (unspecified) attempt to enforce the child support obligation. In addition, three of the parties’ children also testified and stated that the support checks were given to them to pass on to their mother; and that they never saw the father give checks directly to the mother (two of the children were still living with the mother at the time of the hearing).

The Referee concluded that the father was not entitled to a reduction in the amount of the support payments, or to cancellation of support arrears. The father had unilaterally reduced his support payments without court order, but had not provided credible proof of an oral agreement to modify the support obligation.

Affirming the determination that the father was not entitled to retroactive relief, the Second Department held that the father was not entitled to a reduction of the amount of child support payments, or a cancellation of child support arrears:

When child support has been ordered for more than one child, the emancipation of the oldest child does not automatically reduce the amount of support owed under an order of support for multiple children. In addition, a party seeking a downward modification of an unallocated order of child support based on the emancipation of one of the children has the burden of proving that the amount of unallocated child support is excessive based on the needs of the remaining children.

Continue Reading Emancipation Of One Child Does Not Automatically Result in a Downward Modification of Unallocated Child Support

In a February 13, 2013 decision. the Second Department in Braun v. Abenanti directed a father to pay his child’s orthodontist directly and also directed that the mother’s petition for an upward modification of child support be granted.

Doing so, the Second Department reversed Family Court, Suffolk County Judge Richard Hoffmann, who in turn had denied the mother’s objections to an order of Support Magistrate Isabel Buse. The Magistrate’s order, after a hearing, granted the mother’s petition to enforce a 2001 support order only to the extent of directing the father to reimburse the mother the $20 she had paid to the orthodontist. Magistrate Buse also denied the mother’s petition for an upward modification of that decade-old support order.

As for the orthodontia, the 2001 order directed the father to pay 100% of “future reasonable health care expenses not covered by insurance.” The child had orthodontia expenses of $1,329 that were not covered by insurance, of which the mother could only afford to pay $20.

The Second Department acknowledged that as the mother demonstrated that she paid $20 of the child’s unreimbursed orthodontia expenses, the Family Court’s award of only $20 to the mother was properly limited to “those sums for which the mother submitted proof of actual payment to the third-party medical providers.”

Continue Reading Father Directed to Pay Orthodontist Directly; and Mother Entitled to Upward Modification

Two decisions within the last 10 days confirm the need for agreements relating to support to be in (an acknowledged) writing, and then incorporated in a court order.

In one, the Second Department affirmed the award of maintenance arrears without a hearing despite the claimed reduction of maintenance under an oral modification of the parties’ separation agreement. In the second, Albany County Family Court Judge W. Dennis Duggan directed a father to pay 71% of his older son’s private middle school expense, despite the mother’s conceded agreement to pay the full tuition.

In its January 30, 2103 decision in Parker v. Navarra, the Second Department affirmed the award of maintenance arrears by Dutchess County Supreme Court Justice James V. Brands. The ex-husband alleged that he and his ex-wife had orally modified the maintenance provisions of their separation agreement and, alternatively, that the ex-wife should be equitably estopped from enforcing the maintenance provisions of the separation agreement. The ex-husband had requested an evidentiary hearing so that he could present the testimony of witnesses on those issues. Justice Brands denied the request for an evidentiary hearing, awarding arrears on the basis of the parties’ submissions.

The Second Department affirmed, noting that the ex-husband failed to make a showing sufficient to entitle him to a hearing on this issue:

Where, as here, the parties’ separation agreement contains a provision that expressly provides that modifications must be in writing, an alleged oral modification is enforceable only if there is part performance that is unequivocally referable to the oral modification. The defendant did not demonstrate that the plaintiff’s acceptance of reduced monthly maintenance payments was unequivocally referable to an alleged oral modification by, for example, demonstrating that consideration was given in exchange for the plaintiff’s alleged oral agreement to accept reduced maintenance payments.

Moreover, to establish a defense of equitable estoppel, the ex-husband was required to have shown that the ex-wife’s conduct induced his significant and substantial reliance upon an oral modification. Again, the ex-husband was required to have shown that the conduct relied upon to establish estoppel was not otherwise  compatible with the agreement as written.

Continue Reading Support Modification Agreements: Get’em in Writing; Get’em into Court (Part II)

Focus.jpgUnder a 2004 stipulation of settlement that was incorporated, but survived the entry of the judgment of divorce that ended the parties seven-year marriage, the ex-husband/father was to pay $250,000.00 in annual maintenance and $140,000.00 in annual child support emancipated.

The stipulation further provided that the father would be able to apply for a reduction of his child support and spousal maintenance obligations in the event of an “involuntary, substantial, adverse change” in income. Moreover, if a downward modification were to be granted, the parties’ stipulation would be deemed amended to the extent of any relief afforded. The particular provision provided:

Anything herein to the contrary notwithstanding, in the event of an involuntary, substantial, adverse change in the Husband’s income, including income produced by his assets (such as involuntary loss of employment), he shall have the right to make application to a court of competent jurisdiction, which must include a sworn statement of net worth, for an appropriate modification of child-related support and/or spousal maintenance obligations hereunder, and if granted, the parties’ Agreement shall be deemed amended to the extent of any relief afforded on such application.

The September 10, 2012 decision of Westchester County Supreme Court Justice John P. Colangelo in Mark P. v. Teresa P., resolved such an application to reduce his support obligations. The father based his application on the reduction of his annual income from $3.3 million in 2004, when the stipulation was signed to $651,000.00 in 2011, and an anticipated $251,000.00 in 2012. The father, a securities trader, claimed that the reduction in his income was due to “changes in the securities industry, the economy and a general decline in securities’ sales volume . . . .”

The ex-wife/mother contended that the agreement’s support reduction paragraph should be read only to provide the threshold setting the father’s right to apply for a support reduction, but not necessarily to obtain such a reduction. The mother claimed that the provision did not alter the standards for granting a reduction in child support (a substantial unanticipated an unreasonable change in circumstances) or spousal maintenance (extreme hardship).

Justice Colangelo agreed with the mother, and denied relief to the father. Although the Court acknowledged that the parties had “sought” in their stipulation to provide a “less restrictive standard than that provided by prevailing law,” the Court held that the any easing of the standard was “more circumscribed” than the father argued. Justice Colangelo noted that “conspicuous by its absence is any standard to apply once the threshold to apply for reduction was met.” Thus, the Court would apply “well established principles of whether a reduction in amount is warranted.” The father failed to meet that standard.

Justice Colangelo discussed several decisions which honored agreement provisions that only lowered the threshold to apply for relief, but also held that meeting the threshold did not mandate a reduction.

Only by an explicit agreement . . . may the parties successfully substitute a different standard for support payment reduction from the well-worn standards established by statutory and case law.

Continue Reading Divorce Stipulations That Change Court Standards Must Be Precise

Palmieri.jpgResolving the rights and obligations of a couple incident to their divorce often involves the delicate balancing of property rights, spousal and child support, and custody and parenting issues. Attempting an orderly resolution in different forums simultaneously may be impossible.

The July 26, 2012 decision of Nassau County Supreme Court Justice Daniel Palmieri in Loike v. Kletenik, shows just how messy things can get. That decision resolved a husband’s application to vacate the award of a Jewish tribunal, a “Beth Din,” and to downwardly modify a Consent Order of support entered October 25, 2010 before Nassau County Family Court Support Magistrate Neil Miller. That order directed the husband to pay bi-weekly support for the three minor children of the marriage.

In the subsequently commenced Supreme Court divorce action, Justice Jeffrey S. Brown issued a pendente lite order that denied a request for temporary child support because the Consent Order was in place. This, Justice Palmieri opined, lent additional judicial force to the terms of the Consent Order and effectively adopted it in lieu of a separate order for temporary child support.

The wife thereafter moved to hold her husband in contempt for his failure to comply with the temporary support order.  However, that contempt motion was withdrawn on March 7, 2011 when the parties entered into a written agreement to arbitrate their financial and other issues before the Beth Din.

After the parties entered that agreement, the Family Court on June 7, 2011 issued a Final Order of Custody and Parenting Time (Stacey D. Bennett, FCJ). However, even though the parties had earlier entered their agreement to arbitrate, the Beth Din arbitrators were not empowered to make final and enforceable decisions about custody and visitation. New York’s public policy requires that such decisions only be made by the secular courts.

On that basis, Justice Palmieri vacated that portion of the Beth Din award that provided that unresolved disputes concerning the children would be referred to a named Rabbi.

A party gives up substantial rights under both substantive law and procedure when electing to arbitrate. Appellate review is all but completely absent.

Here, having participated in the Beth Din arbitration and failing to raise objections to the panel, the husband waived any claim that the process was tainted or was biased against him. Quoting the  of Appeals in Matter of Silverman (Benmore Coats), 61 N.Y.2d 299 (1984), Justice Palmieri held:

The only basis upon which an award can be vacated at the behest of a party who participated in the arbitration. . . Is that the rights of that party were prejudiced by corruption, fraud or misconduct in procuring the award, partiality of an arbitrator, that the arbitrator exceeded his power or failed to make a final and definite award, or a procedural failure that was not waived.

The husband’s claims that the arbitrators exceeded their powers must rest on the fact that the award violated a strong public policy, was irrational, or clearly exceeded a specific limitation on the arbitrators’ powers.

Continue Reading Substantial Legal and Procedural Rights Are Lost in Divorce Arbitration Before Jewish Beth Din Panel