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.
Rejecting the husband’s claim, the appellate court noted that the father had not provided evidence that the emancipation of the parties’ children made the support obligation excessive. The Second Department relied on its own decision in Wrighton v. Wrighton, 61 A.D.3d 988, 878 N.Y.S.2d 757 (2nd Dept. 2009).
That case, itself, relied on a pre-C.S.S.A. decision in Urban v. Urban, 90 A.D.2d 793, 455 N.Y.S.2d 403 (2nd Dept. 1982). There, it was held that when one child is emancipated, the needs of the non-emancipated children must be considered: there should not be an “automatic” reduction of a lump-sum support order. The emancipation of one (or more) child(ren) does not necessarily mean that the total amount of support should not remain the same for the other children in view of possible changes in the needs of the parties.
The decision in Lamassa raises more questions than it answers:
- We are not told whether or not the divorce stipulation contained its own emancipation clause.
- We are not told what the effect of such a clause would be.
- In none of the cited decisions was the interrelationship between this “not excessive” rule of caselaw and the Child Support Standards Act (1989) discussed.
- We are not told whether or not the divorce judgment, or the stipulation, contained the required C.S.S.A. recitation setting out the presumptive formula for the support of the number of children who were unemancipated at the time of the divorce.
- We are not told whether the parties’ stipulation deviated from the presumptive formula.
- If the divorce judgment was required to have recited the presumptive percentage for the number of children who were unemancipated at the time of the original order, why would a change in that number not automatically entitle either a formulaic change or a de novo hearing.
- We are not told whether the emancipation of a child is or is not a change in circumstances warranting a de novo child support determination.
- We are not told why the burden has shifted to the support payor to demonstrate that the original lump sum award is not excessive despite the emancipation of one or more children, rather than have that burden placed upon the party who argues that the presumptive formula for the remaining unemancipated children is unjust or inappropriate.
- Why is it there a burden to prove that the unallocated order is “not excessive,” and not the test under the C.S.S.A.?
In all events, rushing to put an oral stipulation of settlement on the record has its dangers. Similarly, waiting to modify an existing support order upon the happening of any significant event, may be asking for trouble.
Joseph Giaramita, Jr., of Brooklyn, represented the father.