Last week, Robert Sand was arrested at the Los Angeles Airport following his deportation by the Philippines. Sand, 50, was America's "most wanted" deadbeat dad, topping the Child Support Enforcement list of the Office of the Inspector General of the U.S. Department of Health and Human Services.

Sand, from Nassau County, owes more than $1.2 million in support for three children of two marriages. First ordered in 1996, arrest warrants for his failure to obey support had been issued in 2000, 2002 and 2010. To evade his child support obligations, Sand fled from New York to Florida and then to Thailand where he was arrested on passport and breach of contract charges. A Federal indictment had been issued for Sand in 2009 on two charges of failure to pay child support.

Among the rulings involving Sand, a 2002 decision of the Appellate Division Second Department, in Sand v. Sand, 290 A.D.2d 451, 736 N.Y.S.2d 102, affirmed Nassau County Family Court Hearing Examiner Patricia Watson's denial of an application by Sand for a downward modification of his support obligations. Instead Hearing Examiner (now Support Magistrate) Watson awarded Sand's former wife a judgment for $151,381.98 in support arrears. Sand had testified that, although he failed to make his required payments of $1,000 per week, he had no assets or bank account, he owed large debts, and he was only earning $900 per week. However, after examining the lifestyle led by Sand with his new wife, his prior experience and earnings in cash businesses, and other evidence including unfiled tax return documents, Hearing Examiner Watson determined that the father's testimony lacked credibility.

Although most child support cases fall under State jurisdiction, the Office of Inspector General (OIG) plays an important role in aggressively pursuing parents who fail to pay court-ordered child support.

• the noncustodial parent willfully fails to pay child support for more than 1 year and the State where the child lives is different from the State where the noncustodial parent lives,
• the amount the noncustodial parent owes is more than $5,000 and the State where the child lives is different from the State where the noncustodial parent lives, or
• the noncustodial parent travels to another State or country to avoid paying child support.

Punishment for a first offense for failure to pay child support is a fine, up to 6 months in prison, or both. In the case of a second or subsequent offense or a case when the obligation has been unpaid for longer than 2 years or is more than $10,000, the punishment increases to a fine of up to $250,000, 2 years in prison, or both. Noncustodial parents convicted of these offenses must also pay restitution and/or settlements of the child support amount owed.

"Project Save Our Children" is a multiagency law enforcement initiative that investigates and prosecutes the most egregious child support cases. Its members include investigative analysts from the Administration for Children and Families (ACF), the Office of Child Support Enforcement (OCSE), OIG Special Agents, the U.S. Marshals Service, U.S. Attorneys' offices, and the Department of Justice, along with child support agencies across the United States. These entities identify, investigate, and prosecute noncustodial parents who knowingly fail to pay support obligations and meet the criteria for Federal prosecution under the Deadbeat Parents Punishment Act.

Deadbeats can be reported using OIG's "Report A Fugitive" form.

Yesterdays blog reported upon the Second Department's November 21, 2012 agreement in Woodford v. Woodford with the First Department in Khaira v. Khaira that the statutory temporary maintenance formula is intended to include the portion of marital residence carrying costs attributable to the nonmonied spouse.

In the November 5, 2012 decision in Liebman v. Liebman, Justice Jackman Brown balanced the factors presented by directing the husband to continue to make the marital residence carrying charge payments, but deducting the full amount of those charges from the presumptive maintenance formula.

The wife had sought an award of temporary maintenance based upon husband’s 2011 W-2 income. The wife also asked that in addition to the calculated temporary maintenance sum, the husband should be directed to continue to pay the maintenance, mortgage and carrying charges on the marital residence.

The Court found that the presumptive temporary maintenance award would be $6,337.70 monthly. However, under the facts presented, Justice Jackman Brown found that the presumptive award would be unjust or inappropriate. Specifically, the Court adjusted the presumptive temporary maintenance award after considering factor: (q) any other factor which the court shall expressly find to be just and proper.

The Court noted that the statute is silent regarding whether the Court shall order the presumptive maintenance award in proceedings in which the payor spouse has agreed or is directed to maintain the mortgage and/or carrying charges on the marital residence. In Liebman, it was undisputed that the husband had been paying the carrying charges, including the mortgage, maintenance and insurance, in the sum of $1739.91 monthly.

The Court deducted the sum of $1,739.91 from the husband's presumptive monthly temporary maintenance obligation $6,337.70, and awarded the wife $4,597.79 monthly. The Court also directed the husband to continue to pay the mortgage, maintenance and insurance on the marital residence.

The Court found that the husband had not been candid in presenting his income at approximately $39,000 annually. Instead, the Court imputed to the husband an income equal to the $14,062 in monthly expenses he claimed in his Net Worth Statement. In addition to the husband’s imputed annual income of $168, 744, the wife had investment income of $39,623, derived from investments.

First, as to child support, the Court made no deductions for FICA, Medicare or New York City taxes, as the parties failed to provide evidence of same. The Court applied the C.S.S.A. percentage for two children, 25%, to the entire combined parental income of $208,367. The Court directed the husband to pay $3,516.19 monthly [note: no comment was made concerning a "shelter allowance" being built into the C.S.S.A. formula].

The Court then calculated the presumptive temporary maintenance award at $3,558.22 monthly. However, again, Justice Jackman Brown found the presumptive award unjust or inappropriate. Factor (q) was again applied, here because of the husband’s agreement to maintain the carrying charges on the marital residence, including the mortgage, real estate taxes and homeowner's insurance. These totaled $7,466.95 monthly. This amount exceeded the presumptive maintenance award.

Moreover, the Court noted the statute was also silent regarding whether the Court shall order the presumptive maintenance award where the Court directs the payor spouse to pay temporary child support pursuant to C.S.S.A. The Court was directing the husband to pay $3,516.19 as temporary child support, and monthly carrying charges of $7,466.95. The Court noted that both parties each had access to assets in excess of one million dollars in savings accounts, securities and bonds. Moreover, the Court noted that the wife had been able to meet her monthly expenses without the contribution from the husband. Her Net Worth Statement indicated that she had no liabilities and minimal credit card debt.

In both cases, Justice Jackman Brown considered the claims of the parties tempered by an analysis of available data. Reality checks were undertaken in each case: how have the parties been living, and what would be the effect of blind adherence to the C.S.S.A. and temporary maintenance formulas?

Other aspects of pendente lite relief were at issue in each case. Reasonable minds might differ on the particular balances struck. However, the effort to reach those balances was shown and must be applauded.

In Liebman, Martin Hirsch, Esq., of Flamhaft Levy Hirsch & Rendeiro LLP, of Mineola represented the husband; Stanley M. Nagler, Esq., of New York City, represented the wife.

In Maddiwar, Robert J. Gursky, Esq., of Kew Gardens represented the husband; Andrea Seychett Schear, Esq., of Melville, represented the wife.

That question was apparently answered in the affirmative by the Appellate Division, Third Department, in its October 25, 2012 decision in Bennett v. Bennett.

At the conclusion of the divorce action, the wife moved to amend the Judgment of Divorce, among other things, to clarify that she was allowed to offset her arrears in child support payments to the husband against payments owed to her from husband’s pension. Saratoga Supreme Court Justice Thomas D. Nolan Jr. granted that motion and the husband appealed.

The Third Department upheld the authority of Justice Nolan to amend a divorce judgment to “cure mistakes, defects and irregularities that do not affect substantial rights of [the] parties.” This authority included the authority to amend “a judgment to make it reflect what the court’s holding ... clearly intended.”

Here, the original judgment provided that the sums owed for the pension payments “may be off-set against” the wife’s child support arrears, reflecting the language in Justice Nolan’s prior decision and order. When the husband objected to his wife’s attempt to claim the offset, Justice Nolan amended the judgment to provide that wife “shall be entitled” to the offset.

The Third Department held that the amended judgment appropriately clarified the intent of the Justice Nolan’s original holding. In doing so, the appellate court noted, Justice Nolan did not affect the amount of child support owed by plaintiff or the amount of the husband’s pension to which the wife was entitled. Thus, no substantial rights of the parties were altered.

The appellate decision does not contain enough facts to fully understand its impact or rationale.

First, it would appear that the wife was allowed to offset an after-tax obligation with pre-tax dollars. Child support is neither deductible to the payor, nor taxable income to the payee. The payor pays the child support arrears with after-tax dollars. The payee gets to keep the entire amount without incurring tax obligations.

Allowing an offset of child support arrears against a pension changes that.  For the wife to pay $1,000 in child support, in all probability she would have to earn more than that, say $1,300, and then pay $300 in Social Security, Medicare and income taxes. On the other hand, with an offset, the husband does not now receive the $1,000 in child support arrears to which he and the children are entitled. Rather, he gets to keep $1,000 in pension benefits. When he takes that $1,000 in pension benefits, that sum will be reduced by the taxes he has to pay. Thus, “substantial rights of the parties” would appear to have been altered by the offset.

Moreover, the Third Department, itself, previously recognized the inequity of allowing the child support obligor to offset arrears against assets (or by assuming liabilities). In Koren v. Koren, 279 A.D.2d 829, 719 N.Y.S.2d 347 (2001), the Third Department stated:

[T]there is a strong public policy against the use of a parent’s child support obligation as an offset in resolving other financial issues related to equitable distribution in the absence of consent by the custodial parent and a determination by the court that the child’s needs will be met. To be clear, such financial issues should not be resolved in this manner at the expense of the children. . . . In our view, using child support obligations in this manner as an offset . . . obligations effectively canceled the child support arrears to which plaintiff and the child were entitled.

To resolve these issues, it should not be the option of the parent in arrears in the payment of child support to offset the arrears against a right to receive property being distributed. The parent entitled to receive the child support should be given the choice.

On October 18, 2012, the Appellate Division, Third Department in Cranston v. Horton, affirmed the determination of Ulster County Family Court Judge Marianne O. Mizel to uphold a Support Magistrate's order that each parent contribute 33% towards the reasonable educational expenses of their unemancipated children.

The Family Court had applied the parties' 2007 surviving divorce settlement agreement requirement that each party "shall assist with the children's reasonable college educational expenses according to their relative means and abilities at the time of attendance."

Contrary to the father's suggestion, the equal contribution level fixed by Family Court does not conflict with this provision.

In another part of the lower court decision, the father's application for a reduction in his child support obligation was granted based upon a reduction in his reduced adjusted gross income from $98,000 to $63,000.

Justice Dollinger's analysis would look to a variety of factors to assess the "relative means" of the parties. With how much is each parent left after considering their obligations. Here, the father had a child support obligation (apparently reduced in Cranston to $21,000), the maintenance obligation (unspecified), and the unspecified cost of student and other loans of one of the parties' four children.

The Appellate Division concluded that the father's income still far exceeded that of the mother (more than $23,000 at the time of the parties' 2007 agreement). Thus, the father was in no position to claim an injustice based upon equal contributions by the parties to their children's educational expenses. The court gave no credence to the father's contention that the Family Court impermissibly rewrote the parties' agreement in affirming the Support Magistrate's determination regarding educational expenses.

Cranston is just the most recent in a never-ending line of cases in which the court was asked to apply a standard the parties created, and could have defined for themselves but did not.

Justice Dollinger's decision in L.L. v. R.L is remarkable, if not unique in providing the parties with a formula to resolve their issue as it will continue to arise in the future.

However, the parents in Cranston, have no such guidance, unless we are to assume that in all future years, each parent will pay one third of college expenses. Does that blanket holding reflect the "relative means" of the parties when they have two or more children in college at one time or if either of their incomes, or expenses, change.

It's common, if not easy to settle a divorce by agreeing to determine the college expense responsibility at a later time. However, these recent cases suggest that divorcing parents would be wise to reach specific guidelines, if not a precise formula by which their future income and assets will be assessed to determine both the relative contrbutions of the parents as well as their share of the total cost.

Dana M. Loiacono, Esq., of Larkin, Axelrod, Ingrassia & Tetenbaum, LLP, of Newburgh, represented the father. Joshua N. Koplovitz, Esq., of the Pro Bono Appeals Program of Albany represented the mother.

"What does "means" mean?" Justice Richard A. Dollinger, June 22, 2012

By statute, a court may direct a parent to contribute to a child’s education, even in the absence of special circumstances or a voluntary agreement of the parties. Under the Child Support Standards Act (D.R.L. 240[1-b][c][7] and F.C.A. 413[c][7]) the court may award educational expenses:

Where the court determines, having regard for the circumstances of the case and of the respective parties and in the best interests of the child, and as justice requires, that the present or future provision of post-secondary, private, special, or enriched education for the child is appropriate.

In my May 9, 2012 blog, I discussed the April 24, 2012 decision in Tishman v. Bogatin, in which the Appellate Division, First Department, held that a parent’s contribution to a child’s college education would not necessarily be limited to a portion of the expense to attend a campus within the State University of New York system: the "SUNY cap." In making a decision, there is no burden placed on a parent to show that the child’s needs cannot be met adequately at a SUNY college. "Whether to impose a SUNY cap is to be determined on a case-by-case basis, considering the parties’ means and the child’s educational needs."

In its July 25, 2012 decision in Lynn v Kroenung, the Second Department reaffirmed that unlike the obligation to provide support for a child’s basic needs, support for a child’s college education is not mandatory. Instead, absent a voluntary agreement, whether a parent is obligated to contribute to a child’s college education is "dependent upon the exercise of the court’s discretion, and an award will be made only "as justice requires."

In L.L. v. R.L., Monroe County Supreme Court Justice Richard A. Dollinger was compelled to determine what "means" meant in a couple’s separation agreement. That agreement provided that the parents would finance the children’s college education "according to their respective means at the time the child attends college, after grants and scholarships have been taken into consideration."

In 2011, the parties’ oldest son applied, was accepted, and enrolled at Penn State (Harrisburg). Before he left for school, the mother moved for an allocation of the college expenses. In a prior decision, Justice Dollinger reserved this issue. When the couple’s second son recently applied to Hofstra (stated cost $33,000 annually), the mother sought an allocation of those expenses as well.

Justice Dollinger clarified the issue he would be deciding:

This Court is not deciding what the parents should contribute to their children’s college education expenses. The agreement clearly indicates that both parents would contribute something if they had the means to do so. The only issues before the court are questions of contract interpretation and contractual rights: what the parents agreed they would contribute, what obligation may be enforced against either parent under the agreement, and whether either party has, to date, breached their obligations thereunder.

• Family Court Act §545 provides that in a paternity case, after an order of filiation is made, "the court shall direct the parent or parents possessed of sufficient means or able to earn such means to pay weekly or at other fixed periods a fair and reasonable sum according to their respective means . . . ."
• F.C.A. §415 provides that "the spouse or parent of a recipient of public assistance or care or of a person liable to become in need thereof or of a patient in an institution in the department of mental hygiene, if of sufficient ability, is responsible for the support of such person or patient. . . . the court may apportion the costs of such support among [the responsible persons] as may be just and appropriate in view of the needs of the petitioner and the other circumstances of the case and their respective means."

[Note: in both these cases, the statutory scheme ultimately has the court use C.S.S.A. standards (see F.C.A. §513). Thus, "respective means" ends up being decided using C.S.S.A. rules. Again, with respect to the college obligation, that is "the circumstances of the case and of the respective parties and in the best interests of the child, and as justice requires."]

Rather than use C.S.S.A. caselaw, Justice Dollinger got into the minds of the parties, wrestling with the factors that non-divorced parents face when deciding how to pay for a child’s college education.

The Court held the agreement's use of the term "means" permitted a review of the parties’ assets and liabilities in addition to their annual income before determining their "respective" shares of the obligation.

Viewed in this context, the Court interpreted the term "means" to be an amount of contribution by each parent that will support the child’s college education, but not unduly overburden either parent while maintaining a reasonable lifestyle.

Justice Dollinger noted that he did not interpret the term "means" to include an obligation to borrow to finance the children’s college expenses.

the agreement makes no provision that either party borrow money to finance their child’s college education. The court is readily aware that borrowing by parents is often required to finance college costs, but in this case, the agreement makes no reference to it, or the parties’ capacity to do so.

The Court proceeded to analyze the "respective" incomes, expenses, and assets of these parents of modest means.

After paying his taxes and his child support, the father had $28,478 in "spendable income" in 2010 and $40,024 in 2011. The Court found that after paying his personal expenses, the father did not have any excess income, or "means," to contribute to his oldest son’s college education in 2010. The father's base expenses exceeded his net available income after paying taxes and child support.

The father also made a $400-per-month retirement contribution, which Justice Dollinger found reasonable for a 54-year-old man. In one view, this contribution was an available resource for contributing to the son’s college education. However, the Court declined to hold that college education expenses for the children are more important than retirement savings for the adult.

The court will not, under the guise of interpreting this agreement, require either parent to invade what are realistically minimal retirement assets for the purpose of financing their children’s college costs. Either parent could make such an invasion in the interests of their child, but given the parents’ ages (both are over 53) and the minimal amount of retirement assets, this Court will not require either parent to do so.

In 2011, when the father’s available net annual income increased to $40,024, Justice Dollinger found that the father had approximately $6,500 available as excess income or "means" to contribute to his children’s college expenses.

In considering the father’s means, Justice Dollinger also looked at the father’s modest $1,000 in liquid assets (and $3,500 in credit card debt) and a $68,000 thrift savings plan for retirement, an amount that was "reasonable and necessary for some limited financial security."

The Court declined the invitation to require the husband to invade his retirement account—his sole source of retirement benefits—to fund his children’s college educations. Justice Dollinger would not require the father to sacrifice his reasonable retirement for his children’s college education under the guise of interpreting the phrase "respective means" under the agreement.

From the father’s $6,500 in 2011 "excess income," the Court concluded that the father must contribute up to $3,500 towards his son’s college education. $3,500 was more than 50% of the father's excess available resources for 2011. Justice Dollinger would not require the father to borrow or invade his retirement accounts.

The "up-to" $3,500 contribution is all he can afford, and when the second son goes to college, his obligation remains the same. Simply put, the only "means" the husband has is the $3,500 in available net resources, and this amount remains the same regardless of how many of his children need college assistance. Translated into another application, the husband pays approximately $17,000 annually ($3,500 for college expenses and an estimated $13,500 for child support) for the support of his children and this amount is what his "means" allows him to pay and what the agreement and law requires him to pay.

Both sides acknowledged that the Court could look to the income and assets of the father’s current spouse to determine whether these resources free up "means" of the husband to pay college costs. However, the Court declined to take that step. Neither the parties’ agreement nor equity required that.

Justice Dollinger, then, similarly analyzed the mother’s "means." He noted that the mother received $13,000-$14,000 in support payments in each of the last several years. Thus, to the extent that the Court required the mother to make a college contribution, the Court may be requiring the mother to invade her child support payments. However, Justice Dollinger noted that considering the relative equities of both parties, even if the mother had to invade some portion of the support payments to finance her children’s college education, the ultimate beneficiary of those payments would be the couple’s children and, thus, the payment would be consistent with the spirit of the child support laws. [Note: the C.S.S.A. makes educational expenses an add-on to the base periodic child support obligation.]

Justice Dollinger declined to give the father a credit against his periodic support obligation for any portion of his college contribution deemed as being spent on room and board. The agreement never mentioned the credit. There was no requirement in the agreement that the father’s annual contribution to college costs be allocated to tuition, expenses, or room and board.

The Court then considered the question of whether either parent is required to pay college expenses after the children turn 21. The agreement made no reference to paying college expenses beyond any child turning 21. Justice Dollinger noted, however, that New York courts have increasingly held that in the absence of language in the agreement specifying an age for the cutoff of payment for college expenses, the parents, having generally agreed to pay them, must continue to pay until completion of the child’s college career, even if the child turns 21 before graduating. Accordingly, Justice Dollinger held that the parties intended the college contributions to continue for a period of up to four years after the children graduate from high school.

Justice Dollinger acknowledged that the sums awarded would not offset the cost of the children’s increasing college education. The Court had no information on what financial aid will be available to the students in the future or what, for that matter, college or governmental financial aid personnel might suggest is a reasonable contribution from each parent. The Court had no proof on the tax impacts of college education on either parent. However, Justice Dollinger noted that the determination of any financial aid office and the tax consequences to the parents were not relevant. The question before the Court is what the parents meant when they agreed to contribute "their respective means" to their children’s college expenses.

If some financial aid provider or the universities determine that the parents have a greater capability to contribute, so be it. If the parties had wanted a financial aid office in a university or the federal financial aid authorities to determine their "respective means" and contributions, they could have inserted that requirement in their agreement. Instead, they used other terms and this Court, based on their choice of language in their agreement, has resolved the extent of their contractual obligation to contribute to their children’s college costs.

Justice Dollinger never discussed if or why the "respective means" standard under the parties’ agreement was any different than the C.S.S.A. standard of "circumstances of the case and of the respective parties, the best interests of the child, and as justice requires."

Often the C.S.S.A. standard results in an all-or-nothing pro rata contribution to all college expenses net of scholarships and grants. However, personally, I see no reason for the standards to be different.

The insights and effort of Justice Dollinger to balance the interests of all involved would seem to be called for as much under the C.S.S.A. as with an agreement’s "means" test.

The parties were represented by Steven M. Witkowicz, Esq., of Handelman, Witkowicz & Levitsky, and by Michael A. Rosenbloom, Esq., both of Rochester.

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.

Here, the father argued that for the Court to adopt the mother’s interpretation would render the provision meaningless. Justice Colangelo disagreed, holding that the provision “alerts the Court to factors that the parties deem important in assessing any payment reduction request.” Moreover, meeting threshold effectively insulated the father from a claim that the application was so frivolous as to warrant sanctions or attorney’s fees. Indeed, the mother submitted a cross-motion to Justice Colangelo for attorney’s fees.

Justice Colangelo held that the father’s current $5.5 million in liquid assets precluded a finding that a maintenance reduction was warranted due to “extreme hardship.”

Moreover, the father failed to meet even the less restrictive child support reduction standard because the father offered no evidentiary facts to demonstrate that the father had actively and diligently sought more remunerative employment. The father did not claim to have looked for work at different, perhaps larger brokerage firms, or madeefforts to seek out new clients, or sought additional work to supplement his income. This permitted the Court to conclude that the father’s current economic situation, and the failure to improve it, was at least partially of his own making. The father’s failure to demonstrate his efforts called for the denial of his application without an evidentiary hearing.

The Court did deny the mother’s cross-motion for counsel fees. Although the mother’s income was substantially lower than the father’s, because the stipulation specifically gave the father the right to apply for a downward modification, there was nothing to suggest that the father’s application was frivolous or made in bad faith. The involuntary substantial reduction in the father’s income made it “unfair to award counsel fees under the circumstances, when the Stipulation specifically provides for a modification application.”

The parties’ provision here under review was certainly not meaningless. To the contrary, on a different aspect, the provision significantly changed the results at law. At law, if a couple fixes the child support obligation by an agreement which survives the entry of a divorce judgment or support decree, then a judicial reduction of that support obligation only affects the “ordered” amount of support; the amount collectible using support collection machinery. Only the reduced amount could be payable through the Support Collection Unit process; contempt would only be available for a willful failure to pay the reduced amount; a garnishment could collect up to 65% of the parent’s “disposable income” to satisfy the support obligation and collect arrears.

However, such a judicial reduction would not eliminate contract-law remedies to collect the balance of the support obligation. The portion eliminated from the ordered amount would nevertheless be collectible under contract law. A money judgment could be obtained; there could be a levy made against the property of the obligated parent; an income execution limited to 10% would be available (although not simultaneously with the greater Income Deduction Order or Income Execution available for enforcement of support orders).

Certainly, the agreement threshold was less than the "extreme hardship" legal test for a reduction in agreed-upon spousal maintenance. However, if the "extreme hardship" test is met, the statute, itself, provides for the suspension of the contractual maintenance obligation. The balance of the original amount of maintenance would not be collectible under contract law. D.R.L. 236B(9)(b)(1) provides in part.

Where, after the effective date of this part, a separation agreement remains in force no modification of a prior order or judgment incorporating the terms of said agreement shall be made as to maintenance without a showing of extreme hardship on either party, in which event the judgment or order as modified shall supersede the terms of the prior agreement and judgment for such period of time and under such circumstances as the court determines.

It is not clear whether, in fact, the parties’ provision reduced the threshold to make the application for a reduction in child support, or, indeed, was intended to do so. It is not clear whether the “involuntary, substantial, adverse change in the Husband’s income” which the parties’ agreement made the threshold for a judicial application is, in fact, different than the “substantial unanticipated and unreasonable change in circumstances” standard established by case law to obtain a judicial reduction of a child support obligation. (D.R.L. §236B(9)(b)(2)(i) only requires a “substantial change in circumstances.”)

Nonetheless, if the Court’s interpretation of this provision was accurate as only as reducing the threshold to apply for relief, but not establishing an entitlement to relief, such a provision should be against public policy. Such a provision would allow parties to waste the time and resources of the courts; allowing parties to agree that modification proceedings may be brought, even though they lacked entitlement. Such a result would seem absurd.

Nevertheless, Justice Colangelo correctly threw the ball back into the parties’ “court.” Couples are allowed to change judicial standards, but if they are going to do so, they must be precise. Courts should not be left to guess what the parties intended.

Thus, it is the job of every draftsman, and every divorcing spouse, to fill in the blanks: if ___________, then ___________. Is a modification threshold dependent only upon a change of income, or may assets be considered. Once the threshold is met, what is the court to do? Is the court to make a de novo determination, or not? How will the court base its decision?

Experienced matrimonial lawyers have the perspective to ask the divorcing couple, perhaps exhaustively, what do you want to do if A happens, or B, or C? The couple is, then, empowered to plot their future. However, it is not the job of the court to guess what would have been intended had the parties expressly answered those questions.

In this context, reviewing a divorce settlement stipulation should be reminiscent of the three-year-old who will not stop asking “why.” Here, the divorcing couple will best serve themselves by asking “what if” with that same tenacity.

The father was represented by Jerry Kugmas, Esq., of White Plains. The mother was represented by Christopher Mangold, Esq., of Danziger & Mangold, LLP, of White Plains.

That was the question Monroe County Suprme Court Justice Richard A. Dollinger answered in his July 23, 2012 decision in G.R.P. v. L.B.P. when determining temporary support.

The divorcing couple have been married for 20 years and have 3 children. Throughout the marriage, they enjoyed a "substantial" lifestyle: a comfortable home, country club and health club memberships, annual vacations in resort communities including skiing in Colorado and winters in Florida.

However, that lifestyle always exceeded the couple's earned income. The husband had been employed as a photographer in a business owned by his father, but the business stalled and was closed in the last 18 months. The husband claimed $8,470 in annual income as of July 2011. Although the husband held two undergraduate degrees, he never earned significant sums, with annual earnings in 2000-2009 approximating $35,000. The husband provided no evidence of his efforts to find employment, except a "meek statement" of trying to find work as a self-employed photographer.

In considering his obligation to support his family, this court declines to give any significant credence to the husband's employment efforts. Again, the only reasonable conclusion is that the husband's parents have financed most of, if not all, the family's expenses for at least two years, if not significantly longer.

The wife, who also held an undergraduate degree, earned $25,000 annually from her employment.

Nonetheless, the husband in his statement of net worth listed expenses of $94,812 annually. The wife estimated expenses at more than $107,000 annually. Moreover, neither party's budget included any expenses for the education of the oldest child, now attending college.

Moreover, New York law gives this court "considerable discretion to impute income to a parent where the parent receives money, goods, or services from a relative or friend." DRL § 240 (1-b)(b)(5)(iv)(D); FCA § (1)(b)(5)(iv)(D). A plethora of opinions provides a solid foundation to impute income to the husband based on the financial contributions from his parents (whether described by the husband as "gifts" or "loans").

Given this landscape of judicial authority, this court must impute income to the husband based on his employment history and his parental support; and there is an equally compelling command to impute income to the wife based on her income and family support.

Based upon his earnings over the past decade, Justice Dollinger imputed $35,000 in annual employment income to the husband. Moreover, based on the history of the continual influx of financial assistance to the husband through his parents, the husband was determined to have annual financial assistance from his parents in an amount of $75,000.

This court having found a multi-year pattern of parental subsidy for the husband, imputes the amount of that contribution to the husband for the purposes of evaluating his income and resources available for purposes of support of his wife and children.

Moreover, the Court held that the husband's $143,000 brokerage account, funded by annual gifts from his mother, and a $32,000 IRA were available to pay support obligations.

Although the wife had received gifts from her parents throughout the marriage, they were not substantial or regular enough for the Court to impute any periodic gifts to the wife as income for paying family expenses.

Based upon the foregoing, Justice Dollinger applied the temporary maintenance formula to his imputed annual income of $110,000 and awarded the wife some $26,000 in annual temporary maintenance. Using the C.S.S.A. formula, with appropriate adjustments, Justice Dollinger ordered some $22,000 in annual temporary child support.

Justice Dollinger acknowledged that the husband did not have the income to support these payments. However, the husband did have assets to pay these expenses during the pendency of the divorce.

It is clear that, when his expenses have mounted, his parents have paid those expenses. In the absence of a job that will generate enough income, this court acknowledges that the husband may have to turn to his parents for the resources to pay these obligations. … This court cannot permit the husband to now shut off his family support, if the impact is to reduce his statutory obligations to his wife and avoid his child support obligations.

The parties were represented by Gregg M. Tirone, Esq., and by Michael T. Hagelberg, Esq., both
of Rochester.

Respondent is guilty of very serious professional misconduct. He exhibited a lack of candor on his application for admission. As we recently stated, candor and the voluntary disclosure of negative information by an applicant are the cornerstones upon which is built the character and fitness investigation of an applicant for admission to the New York State bar.

Original July 17, 2012 entry:

William Eric Melendez was admitted to the practice of law in New York in 2009. Although he resides in Puerto Rico, he maintains an office for the practice of law in New York.

On January 26, 2011, the Superior Court of Puerto Rico issued an order finding Mr. Meledez had failed to make child support payments for over 36 months and was $90,897.84 in arrears.

In Matter of Melendez, the First Department suspended Mr. Melendez immediately, and until his arrears were paid.

New York Domestic Relations Law §244–c provides for the suspension of a professional license if the bearer of such license has arrears in child support obligations amounting to four months or more. Section 244-c(a) provides:

In any proceeding for enforcement of a direction or agreement, incorporated in a judgement or order, to pay any sum of money as child support or combined child and spousal support, if the court is satisfied by competent proof that the respondent has accumulated support arrears equivalent to or greater than the amount of support due pursuant to such judgment or order for a period of four months and that the respondent is licensed, permitted or registered by or with a board, department, authority or office of this state to conduct a trade, business, profession or occupation, the court may order such board, department, authority or office to commence proceedings as required by law regarding the suspension of such license, permit, registration, or authority to practice and to inform the court of the actions it has taken pursuant to such proceedings. . . .

Based on its findings of non-support, the Superior Court of Puerto Rico referred the matter to the Appellate Division. That court presides over attorney discipline. The First Department, in turn, referred the matter to the Departmental Disciplinary Committee. A Hearing Panel of that committee reported and recommended the suspension of Mr. Melendez.

Here, the procedural requirements under Judiciary Law §90(2-a)(b) were satisfied and respondent failed to appear and assert the only applicable defense, proof of full satisfaction of arrears. Under the circumstances, respondent's immediate suspension is warranted.

The suspension will continue until the Court has been notified by the Superior Court of Puerto Rico, or its designate support collection unit, that all child support arrears have been satisfied in full, and until further order of the Court.

The ruling is not unique. In Berger-Carniol v Carniol, 273 A.D.2d 427, 710 N.Y.S.2d 114, the Second Department in 2000 held that it was proper to direct the commencement of proceedings to suspend Mr. Carniol's licenses to practice law and to act as a mortgage broker, mortgage banker, insurance broker, and real estate broker, based on evidence that he had accumulated support arrears equivalent to or greater than the amount of current support due for four months.

Attorney discipline may be imposed without resort to D.R.L. §244-c. Also in 2000, in Matter of Klagsbrun, 279 A.D.2d 192, 717 N.Y.S.2d 297, the Second Department disbarred an attorney who was found to have engaged in conduct prejudicial to the administration of justice, in violation of Code of Professional Responsibility DR 1–102(a)(5) (22 NYCRR 1200.3[a][5]). In 1995, the Supreme Court, New York County, had directed the Mr. Klagsbrun to make the following payments in a matrimonial action: (a) $1,812,758.75 to his former wife, Shulamith Klagsbrun, (b) $60,000 to Shulamith Klagsbrun, and (c) $296,075 to Elaine Rudnick Sheps, Esq. Although Mr. Klagsbrun had actual notice of the provisions of the order and judgment, he failed to comply with them.

Whether to suspend a license, absolutely or conditionally, may require balancing discipline with the need to continue the ability of the support provider to earn a living. Where that balance is struck may well reflect the good faith efforts of the support payor to partially comply with the support obligations. In all events, license suspension remains an extraordinarily powerful weapon available to enforce support.

For example, parents may reduce the presumptive child support amount where the child(ren) spend more time with the "non-custodial" parent than what might be considered the "normal" alternate weekends and a mid-week dinner.

May the non-custodial parent's failure to fully exercise visitation rights under an agreement serve as a basis to increase child support?

In its July 11, 2012 opinion in McCormick v. McCormick, the Appellate Division Second Department said, "Yes." It found that the substantial reduction in a father's visitation with his child warranted an upward modification of the father's child support obligation. That reduction in visitation provided the substantial change in circumstances needed to justify a support modification.

[T]he mother established that an increase in the father's child support obligation was warranted by a change in circumstances … Specifically, the substantial reduction in the father's visitation with the child, which significantly reduced the amount of money the father was required to spend on the child, "constituted an unanticipated change in circumstances that created the need for modification of the child support obligations."

The Second Department was quoting from the 2002 decision of the Court of Appeals in Gravlin v. Ruppert, 98 NY2d 1, 743 NYS2d 773. That case also addressed a father's failure to live up to his scheduled substantial parenting time.

Three years after the agreement in Gravlin was entered, their daughter refused to accompany her father on a summer trip he had planned, and instead returned to her mother's home. After that, all significant visitation between father and daughter came to an end. The mother commenced a Family Court proceeding seeking enforcement and modification of the father's child support obligations.

The Court of Appeals in Gravlin found that the unanticipated change in the father's relationship with his daughter created a need for modification of the support terms of the separation agreement (the Family Court had found that the daughter did not abandon her father). Those support terms had become unworkable. Under the parents' agreement, each parent had assumed an obligation to support the child when the child was with him or her. Yet, after visitation broke down through no apparent fault of either party, only the mother was providing such support. Accordingly, the support obligations of the father under their separation agreement were properly modified by the Family Court, below.

Moreover, the Court of Appeals determined that in that case, the imposition of C.S.S.A. standards was the appropriate remedy after the contracted-for support provisions failed. The parents had intentionally “opted out” of the C.S.S.A. presumptive formula in order to fashion their own support arrangement. That arrangement was entwined with their respective custodial and visitation rights; the support obligations were directly linked to continued visitation between father and daughter. When the visitation arrangement broke down, those support provisions failed.

In McCormick, the Second Department did not detail the parties' visitation arrangements, nor the extent, if any, to which the parties had deviated from the presumptive C.S.S.A. formula in their support stipulation entered just one year before the current proceedings began. Without such details, this decision may open the floodgates for modification applications based upon the failure to fully exercise visitation rights.

It is common to provide in settlement stipulations that visitation is entirely optional; and that a parent's failure to exercise such right on any particular occasion is not to be deemed a waiver of full visitation rights thereafter.

It may also be prudent to provide in settlement agreements that the failure to exercise all or any portion of visitation rights shall (or shall not) affect child support obligations, and may (or may not) serve as a basis to modify any child support or other obligations under the agreement.

The father thereafter commenced a Nassau County Family Court proceeding to terminate his child support obligation. Upon the mother's motion, Support Magistrate Penelope Beck Cahn dismissed the father's petition. Family Court Judge Edmund Dane denied the husband's objections to the Magistrate's ruling.

Last week, in Singer v. Prizer, the Appellate Division Second Department affirmed. The court held that the father's agreement not to "bring on any application to . . . modify" his agreed-upon child support obligation precluded the father from commencing the proceeding below. The Second Department held:

the cause of action alleged in the petition was "completely undermined and rendered legally insufficient by the very terms of" the stipulation.

The Court did not expressly state whether it was construing the husband's waiver of the right to apply for a modification as a waiver of the right to seek a complete termination of the child support obligation. There was no mention of a provision of the parties' stipulation which barred a proceeding to completely terminate the child support obligation.

In his May 14, 2012 decision in K.W. v. M.W., Onondaga County Family Court Judge Michael L. Hanuszczak rejected a father's objections to the determination of a Support Magistrate. While doing so, Judge Hanuszczak considered the impact of certain union fringe benefits when determining income for Child Support Standards Act purposes. The father, a member of the International Association of Heat & Frost Insulators andAllied Workers Local 30, claimed his income was the union base rate of $28.55 per hour. The Support Magistrate upheld the argument of the mother that the court should also impute the value of contributions to various union benefit plans, bringing the total to $45.35 per hour. Those union plans included the pension fund, welfare fund, annuity fund, apprenticeship fund, industry advancement fund, and LMCT [presumably a Labor Management Cooperate Trust Fund]. Judge Hanuszczak stated:

As a general rule, the Court finds that such benefits must be regularly or periodically received by the recipient or must reduce the recipient's living expenses to be considered as a part of a parent's gross income.

Thus, for example, the amount contributed by an employer to the employee's pension fund, 401k account, or health insurance premium would not be imputed to gross income for the purpose of calculating child support. However, an allowance for a vehicle or cell phone which is used for personal use would be considered for inclusion in the gross income amount. Such a rule would be applied by the court on a case-by-case basis taking into consideration the evidence adduced at trial on that particular proceeding.

Judge Hanuszczak's rule was dicta, remarks not necessary to his determination affirming the Support Magistrate's holding that the father was not entitled to a downward modification of his support obligation. That result was supported by "other evidence in the record at trial." The father had failed to demonstrate an adequate change of circumstances to warrant a reduction of his child support obligation.

On May 23, 2012, the Appellate Division, Second Department, in Bershadskaya v. Nemirovsky reversed the determination of Kings County Family Court Judge Arnold Lim which had upheld the order of Support Magistrate John M. Fasone. The Family Court rulings determined that additional income should not be imputed to a father. To the contrary, when ordering that a new hearing be held, the Second Department stated:

Where the father admitted that his company paid for him to lease a late model BMW, where BMW Financial Services documents revealed that he was a general manager with a gross annual salary of $95,000, and where he failed to submit compulsory financial disclosure, it was an improvident exercise of discretion for the Support Magistrate to fail to impute additional income to the father.

The Second Department did not specifically hold that all, or any specified portion of the BMW lease payments must be added to the father's income; only that the Family Court was incorrect when finding that additional income should not be imputed to the father.

The treatment of fringe benefits is an uncertain area. Courts have included the value of employer-provided housing, but only if residency is not mandatory. Massey v. Evans (4th Dept. 2009), C.H. v. S.H. (Sup. Schenectady 2012). It may be proper to add other benefits such as automobile insurance, gas and oil payments, vehicle maintenance and repair costs, and personal expense allowances. Skinner v. Skinner (241 A.D.2d 544, 661 N.Y.S.2d 648 [2nd Dept. 1999]). Before-tax health insurance deductions have been imputed. Bellinger v. Bellinger (3rd Dept. 2007). Mandatory public employee retirement contributions should not be considered. Ballard v. Davis, 259 A.D.2d 881, 686 N.Y.S.2d 225 (3rd Dept. 1999).

Judge Hanuszczak's general rule seems fair and workable. Does the fringe benefit reduce living expenses? Is it regularly or periodically received? When the family was together, was it a benefit that directly or indirectly enabled more money to be available for the support of the child? Is it fair to hold that the benefit puts money in the parent's pocket for which the child should now benefit?

Both the Domestic Relations Law and the Family Court Act authorize parents to enter agreements which establish their child support obligations. DRL §§236B(3) and 240(1-b)(h) and FCA §413(1)(h) set out many requirements for such agreements.

Nothing suggests that modifications of such agreements are any less prescribed. Indeed, a "belt and suspenders" approach calls for nothing less than a fully-restated support obligation agreement to implement the slightest change to which parents agree.

Consider the March 29, 2012 decision of the Appellate Division, Third Department, in Hirsch v. Schwartz. The parties' 2007 separation agreement was incorporated into and survived their 2009 judgment of divorce. It required the father to pay 96% of all child-care expenses for the parties' two children. Shortly after the divorce, the mother sent the father a letter offering to  reduce the father's child-care expenses from 96% to 75%. Although the father did not sign and return the letter, he made at least two full reimbursement payments and several partial payments in the months that followed.

The mother subsequently commenced a Saratoga County Family Court proceeding to enforce the child support provisions of the original judgment of divorce. The father argued that the mother's letter offer served to modify his support obligations and that the terms of this subsequent agreement should be enforced. Following a trial, the Support Magistrate found that the letter offer did constitute a valid modification of the parties' separation agreement; the father's child-care share of expenses was reduced to 75%. However, upon the mother's written objections, Family Court Judge Gilbert Abramson concluded that the Support Magistrate lacked the authority to enforce the terms of the purported modification agreement. Therefore, the original provisions of the judgment of divorce concerning the father's child-care obligations controlled.

The Third Department affirmed, holding that the Family Court, as a court of limited jurisdiction, may only enforce or modify child support provisions contained in a valid court order or judgment. Thus, even assuming that the mother's letter offer constituted a valid modification of the parties' separation agreement, the Family Court “does not have subject matter jurisdiction [to] enforce the amended agreement which stands as an independent contract between the parties.”

It is noted that the Appellate Division, Second Department, in its April 24, 2012 decision in Tammone v. Tammone, also held that "the Family Court did not have jurisdiction to make a declaration as to the validity of an alleged oral modification of a separation agreement."

The Third Department in Hirsch did not discuss whether the father might have a separate contract remedy enforceable in Supreme Court to recoup any "over-payments." However, perhaps the lesson to be learned is that nothing less than a fully-restated court-approved child support agreement is sufficient to put into effect the slightest of modifications. Thus, among other provisions, the restated modification agreement should:

• be in writing;
• be signed by the parties;
• be acknowledged before a notary public;
• include a provision stating that the parties were advised of the provisions of the CSSA (Child Support Standards Act) and that the basic amount of child support provided for in the CSSA would “presumptively result in the correct amount of child support to be awarded”;
• set forth the amount that the basic child support obligation would have been and the reasons why the parties may not have provided for the CSSA amount in their agreement or stipulation;
• contain opting-out language limiting future modifications;
• contain recitations regarding enforcement methods; and
• contain, or at least reference and reaffirm all other related agreement provisions such as emancipation, health insurance and expenses, child care and college.

Then, the agreement should be submitted, on consent, to the Supreme Court to obtain a modified divorce judgment or order of support.

Yes, all this means that lawyers, for both parents, must be re-involved. However, nothing less will give peace of mind.

Anne Reynolds Copps of Albany represented the father. Jennifer P. Rutkey, of Gordon, Tepper & DeCoursey, L.L.P., of Glenville represented the mother.

Should an unemployed father be required to prove why he should not have to relocate to seek/obtain employment in his field as a condition to him receiving a downward modification of his child support obligations?

Presenting a scholarly review of decisions in New York and around the country, Monroe County Supreme Court Justice Richard A. Dollinger crafted a test to determine whether a parent with substantial child support obligations, and unique job skills, is required as a matter of law to geographically expand his search for employment.

The essential facts in Szalapski v. Schwartz are not unfamiliar. The former spouses have three children, ranging in ages from 10 to 15. When the parties were divorced in 2005, the father was earning $82,000 annually; the mother approximately $6,000. The father’s child support obligation was $1,826.49 monthly.

Mr. Szaplapski (the “father”) is a "multi-disciplinary physicist," with a career in academia before serving as a staff engineer. He left academics in 2004, electing to stay in western New York to accommodate his family. He worked in software design for which he had only marginal qualifications. In July, 2010, the father was laid off. After his severance pay ended, he received unemployment insurance benefits of $405 per week.

In the application being decided by Justice Dollinger, the father, now remarried, sought to reduce his child support obligation. He alleged that he was unable to find comparable employment in the geographic area where his children live.  His ex-wife challenged the diligence of his job search, but also argued that because of the father's unique talents, the court must require him to diligently search for employment in a broader geographic area. That the father failed to do.

Justice Dollinger began with a detailed legal and factual analysis of the father’s search for employment in the Rochester area where the parties lived. This exhaustive analysis, itself, presented a primer on the diligent efforts necessary to withstand a motion to dismiss an application for a downward modification of a child support obligation based upon the loss of employment. Based upon the evidence presented Justice Dollinger found that the father presented “a prima facie case for a hearing.”

Noting that a parent's child support obligations are “paramount.” Justice Dollinger then turned “to the second question: is the applicant required to demonstrate a reasonable job search outside the local community and, if so, how far does his job search have to extend?”

Two Fourth Department cases, Jeflo v. Jeflo, __ AD3d __ (2011), and Simmons v. Simmons, 26 AD3d 883(4th Dep't 2006),aff'g11 Misc 3d 1055A (Sup. Ct. Alleghany Cty 2004) suggested “that there is a "one hour's drive" radius on the geographic reach of a "diligent job search.” However, Justice Dollinger felt the a “bright line test” of one hour's drive was an “arbitrary rule, with no statutory support and the potential for a wide community based variance.”

Instead, Justice Dollinger turned for guidance to the more flexible analysis set forth by the Court of Appeals in Tropea v. Tropea, 87 NY2d 727, 736 (1996), for a court to decide whether the custodial parent should be allowed to relocate with the children.

After reviewing the factors to be considered to determine the best interests of the children in such cases, Justice Dollinger looked for further guidance to out-of-state holdings on the requirements used to measure the geographic reach of a diligent job search. Discussing the wide range in views, the Court was sympathetic to the rejection of any per se rules by the Virginia Court of Appeals in Reece v. Reece, 470 S.E.2d 148 (1996).

Blending the factors presented in Tropea and Reece, Justice Dollinger declared that the factors which would be evaluated to determine whether one looking to reduce support obligations was required to engage a broad search for employment and/or relocate for employment. Those factors included, but notably would not be limited to:

1. the magnitude of the economic benefit resulting from the relocation for employment; 
2. the quality of the relationships between the child and the obligated parent;
3. the impact of the relocation on the quantity and quality of the child's future contact with the noncustodial parent or other family members;
4. the degree to which the custodial parent's and the child's life may be enhanced economically by the income derived from the relocation;
5. the feasibility of preserving the relationship between the noncustodial parent and the child through suitable visitation arrangements;
6. the supporting spouse's business and familial ties to the community and the length of time in which the supporting spouse has resided in the community;
7. monetary considerations which would impose an undue hardship upon the supporting spouse if he or she were forced to relocate for employment;
8. the geographic distance between the respective communities and the methods of travel between the communities; and
9. the severity of the burden created by a downward modification of the support payments would have on the obligee spouse.

Weighing these factors provides a reasonable foundation to evaluate whether an applicant's search for employment, to be diligent, requires looking outside the local area. The Court stated that the scope of a "diligent search" seems to be a judicial construct and, in this economy, with many parties seeking employment in a truly national marketplace — and simultaneously seeking modifications of their support obligations — greater clarity in balancing these competing interests is required.

Justice Dollinger concluded that a parent should be required to search in a broad geographic area until the Tropea/Reece factors tilt against his relocation. The test should balance the economic benefit of increased support against the visitation rights of the husband. The court should also explore whether those rights could be preserved, yet suitably altered (as with custodial-parent relocation).

Justice Dollinger thus placed the burden on the father to show why he should not be required to relocate to find suitable re-employment.

[T]his Court is cognizant that the burden of proof on these criteria rests with the father. He is seeking modification of his support under the diligent search test. He retains the burden of proof on all these criteria to show that his "diligent search for employment" does not require him to seek employment outside his current community. He must demonstrate that he could not obtain employment in a location in which he would nonetheless be able to maintain a reasonable relationship with his youngest son. In essence, the husband must prove that the benefit of the increased support, occasioned by finding a job in a new location, would be outweighed by the deleterious impact on his relationship with his son and that no alteration in the visitation schedule could accommodate his visitation with his son.

Mr. Szaplapski was granted a hearing to establish the application of the Tropea/Reece principles to this case. The hearing was delayed for 60 days to permit him to investigate employment opportunities outside the geographic area surrounding his current residence.

“Bright-line tests” are arbitrary. They also serve to advise parents, in advance, what they are required to do. They do help matrimonial lawyers counsel their clients. However, Justice Dollinger is correct. The compelling interests of a child should not be sacrificed to arbitrary planning.

On the other hand, should the father, here, have the burden to prove why he should not have to relocate (with his new wife) to a new home within an hour or two flight from his “former” family.

The Tropea analogy does not hold completely true. In relocation cases applying Tropea, the custodial parent wants to move; to obtain a job, join a new spouse, be with family, etc. The desired relocation is presumably intended to be permanent: this is where the custodial parent wants to go and wants to stay. The only disruption to the noncustodial parent’s life will be the need to alter visitation.

Here, Mr. Szaplapski does not want to move. The court will require that every aspect of his life over the past many years yield to the child support obligation. Moreover, the forced loss of home, friends, church, etc. is not a desired permanent plan; it need only to last until the children are emancipated.

Mr. Szaplapski reported that a decision was made in 2004 to stay in western New York for the sake of the family. Should not the family as a whole be forced to abandon that plan? Should the decision whether to relocate be a family decision? If the custodial parent wants to insist that the noncustodial parent relocate to obtain financial security, should not the custodial parent be compelled to follow if the move is needed to insure family financial security?

Moreover, if it is the children’s needs that are paramount, should not the custodial parent be required to pitch in. Before making the father relocate hundreds of miles away, if not more, should not the mother be required to demonstrate that she has not and cannot improve her economic lot for the sake of the children. (If the child support obligation is fixed by agreement, the mother’s contract remedies would still be intact; the father would ‘pay the mother back’ at a later stage of life.)

Still further, Justice Dollinger directed Mr. Szaplapski to make use of the 60 days before the hearing “to investigate employment opportunities within” the geographic area deemed appropriate. The Court suggested that New York City, Washington and Cleveland might be appropriate, but how does Mr. Szaplapski know where to stop?

How is Mr. Szaplapski to investigate those employment opportunities? Should a man living on unemployment benefits and unable to meet his existing support obligation be required to travel to thesecities, staying there for days to hit the pavement? Withsuch limited funds, is he required to hire an expert to advise the Court on employment opportunities. If a decision is based on statistical opportunities, who guarantees the statistical opportunity to Mr. Szaplapski?

Moreover, Mr. Szaplapski faces a Catch 22. Until he knows whether the Tropea/Reece “balance” requires him to move, should he actually apply for employment, no less accept a job?

Generally, how will a father who loses his job know when he must start looking out of state? If construction jobs are slow at home, must every construction worker immediately look around the country for better prospects?

Moreover, willful non-payment of child support may be punishable as a contempt of court. Jail or relocation may be the choice confronting the unemployed parent. Viewed with that extreme lens, the issue is one of constitutional implications.

While a “bright-line test” should yield to compelling necessity, putting the burden solely upon the father would not appear balanced. If this is a post-divorce family crisis, it is the entire family that should face the crisis together.

The parties planned for a change in primary residence in their Separation Agreement. Specifically, if the children moved in with the father, the mother would not be obligated to pay periodic child support. (The father was paying $5,000 per month in child support while the children lived with the mother.) Moreover, the change in primary residence resulted in an "emancipation event" under the agreement, terminating the mother's obligation to equally share certain expenses of the children including private school tuition, various unreimbursed medical costs, extracurricular activities, summer camp and college tuition.

This proceeding involved the father's request for child support and for the mother to pay her pro rata share of expenses. The mother argued that as the agreement contemplated a change in primary residence from the mother to the father, there was no unanticipated change in circumstances sufficient to effect a modification of the parties' Agreement. No periodic child support obligation should be imposed upon her. Moreover, the mother claimed to have paid some $300,000 towards the children's expenses over the past three years.

In her March 28, 2012 decision in Rome v. Rome, New York County Supreme Court Justice Lori S. Sattler noted that "parents cannot contract away the duty of support." Similarly, the Court has noted that a parent may not eliminate or diminish his or her duty to support by way of separation agreement. The parties' agreement to waive support from each other "is not binding and against the public policy of providing for the support of children. The relevant inquiry is whether the children's needs are being met as their needs will take precedence over the Agreement."

While the Defendant asserts that the Plaintiff's application must be denied since he has failed to demonstrate a substantial change of circumstances, the Court finds that the Plaintiff does not need to meet that burden for this application to go forward. Under the terms of the Agreement, the Defendant is required to pay nothing on behalf of the children and has been under no obligation since some time in 2008. Such provision is not binding and against the public policy of providing for the support of children. The relevant inquiry is whether the children's needs are being met as their needs will take precedence over the Agreement.

Comment:The agreement which resolves a divorce often reflects a delicate balance among issues of spousal and child support and asset and liability division. Years after the execution, a court should be extremely hesitant to alter one of those balanced issues. The court should not ignore that various trades may may have been made to arrive at the overall agreement. Focusing on only one aspect of the agreement, even a waiver of child support, does the entire agreement a disservice.

Certainly, Justice Sattler properly decided to look at whether the needs of the children are being met. However, if the father is able, alone, to meet the reasonable needs of the children, consistent with the children's lifestyle, then the parties' agreement should be honored. Where the agreement merely allocates responsibilities between the parties, and does not prejudice the children, the parties' agreement should be upheld.

As the Court of Appeals has noted, there is a difference between an agreement that is directed solely to readjusting the respective obligations of the parents to support their child (Matter of Boden v. Boden, 42 N.Y.2d 210, 397 N.Y.S.2d 701 [1977]) and a court's power to order support where a child's right to receive adequate support is in issue (Brescia v Fitts, 56 NY2d 132, 138, 451 NYS2d 68 [1982]).

Not every waiver of child support, particularly one within the context of an overall divorce settlement between apparently wealthy spouses, should be void as against public policy. A separation agreement should be validated, unless it must yield to the welfare of the children.

Moreover, unless and until it is found that the needs of the children cannot be met if the waiver of support is honored, financial disclosure from the parent now not obligated by the agreement to pay support should be limited.

The First Department held that Justice Cooper properly rejected the father's contention that a so-called SUNY cap should be imposed on his obligation to contribute to the costs of the child's college education. There was no burden placed on the mother to show that the child's needs cannot be met adequately at a SUNY college.

Whether to impose a SUNY cap is to be determined on a case-by-case basis, considering the parties' means and the child's educational needs. A rule that, absent unusual circumstances, a parent's obligation is limited to the maximum SUNY tuition would be inconsistent with Domestic Relations Law § 240(1-b)(c)(7). Under that provision, a court may award educational expenses where it determines, "having regard for the circumstances of the case and of the respective parties and in the best interests of the child, and as justice requires," that the education sought to be paid for is appropriate.

Here, the appellate court noted, he child attended an elite public high school, his reasons for preferring the private college over SUNY schools were sound, both parties attended private college and private law school (neither party was represented by counsel), and both parties have the resources to pay the tuition at the private college where the child is enrolled.

The parents of a now-19 year old son have been engaged in decade of contested litigation. They were divorced in 2004. Joint legal custody and shared parenting time was replaced by 2006 by an award of sole custody to the father when the mother's post-divorce relationship with her boyfriend caused the child severe emotional distress. Twice, the court recommended counseling. The parties' son, now in college, has refused contact with his mother.

The current proceeding involved the father's 2009 application for an order of support and contribution towards the child's therapy costs. The mother raised as a defense a contention that the child had been alienated from her by the father and that the child had constructively emancipated himself from the mother.

After a hearing, Ulster County Family Court Judge Marianne O. Mizel found in October 2010 that the mother's affirmative defenses lacked merit, and granted the father's motion to dismiss her defenses. In its May 3, 2010 decision in Dempsey v. Arreglado, the Third Department affirmed, upholding Judge Mizel's finding that although he may bot be a model cooperative parent, the father did not unjustifiably interfere with the mother's rights regarding the child, nor was he the cause of the fractured relationship.

Child support payments may be suspended where the custodial parent unjustifiably frustrates the noncustodial parent's right of reasonable access . . . . Further, a child's right to support may be forfeited if the child is of employable age and the child actively abandons the noncustodial parent by, without cause, refusing contact . . . . To prevail on the issue of abandonment, a parent must show that the child's refusal of contact “is totally unjustified.”

Here, the appellate court noted that there was ample evidence that the mother's own conduct was the cause of the broken relationship with her son. She was informed shortly after the change in custody to the father that her actions were severely traumatizing the child and that proper counseling would be important to resuming visitation. Nevertheless, she did not follow through with such counseling. Instead, she continued to blame others and failed to appreciate her own role in alienating her child.

As a result, the mother failed to sustain her burden of showing a lack of justification for the child's refusal to maintain contact with her.

In an April 24, 2012 decision, the Second Department reversed so much of the order of Westchester County Family Court Judge David Klein which denied a mother's objections to the order of Support Magistrate Esther R. Furman. That order failed to direct the father to pay his pro rata share of the private school expenses of the parties' child. The Second Department also reversed the sua sponte termination of the father's obligation to contribute to trial care expenses.

In Amos-Richburg v. Richburg, the parties, divorced since 2003, are the parents of one child born in or about 1995. When the child was three years old, the parties had jointly enrolled him in a private pre-kindergarten, where he received a full scholarship. The divorce judgment incorporated and continued the terms of a Family Court order of support, entered December 8, 1999, which, in part, obligated the father to pay the mother $102 biweekly for child care. The judgment of divorce and the prior order of support were silent as to the parties' respective responsibilities for the child's private school expenses in the event that he ceased to receive a full scholarship.

In June, 2008, the mother filed a petition seeking an upward modification of the father's child support obligations. She requested that the father be directed to pay his pro rata share of the child's private school expenses. The child, then 13, was enrolled in the same school since pre-kindergarten. However, the child no longer received a full scholarship, and the mother alone had been paying his expenses. After a hearing, the Support Magistrate, among other things, denied the mother's request to direct that the father pay his pro rata share of the child's private school expenses. The Magistrate, on her own motion, terminated the father's obligation to contribute to child care expenses. The mother's objections to these rulings were ultimately denied by the assigned Family Court Judge.

The Second Department reversed, holding that the the Support Magistrate improvidently exercised her discretion in denying the mother's request to direct the father to pay his pro rata share of the child's private school expenses. Pursuant to Domestic Relations Law § 240(1-b)(c)(7), the court may direct a parent to contribute to a child's education, even in the absence of special circumstances or a voluntary agreement of the parties, as long as the court's discretion is not improvidently exercised in that regard.

Here, the child had been enrolled in the private school with the father's approval, and performed well in that school. Thus, the appellate court ruled:

It was in the child's best interest to remain at that school, rather than having his academic and social life disrupted by a transfer to a different school.

Additionally, there was no evidence that the father's ability to support himself and maintain his own household would be impaired if he were directed to pay his pro rata share of the child's private school expenses.

Additionally, the Support Magistrate erroneously terminated the father's obligation to contribute to child care. Where the custodial parent incurs child care expenses as a result of employment, the noncustodial parent may be required to pay his or her proportionate share of such expenses as a supplement to the basic support obligation> Such child care expenses shall be prorated in the same proportion as each parent's income is to the combined parental income.

Here, the mother worked as a private banker, which often requires her to work until 11:00 P.M. or midnight during the week. She did not believe that the parties' 13-year old son was old enough to be alone for such long periods of time after school. Indeed, she was paying a babysitter to watch him three or four times a week. Under these circumstances, it was error for the Support Magistrate to, sua sponte, terminate the father's obligation to contribute to child care expenses. Accordingly, the father's obligation to contribute to child care expenses must be reinstated.

The parties should have addressed that what-ifs either in their 1999 Family Court or 2003 divorce court proceedings. If the father was unwilling to pay if the child's scholarship was terminated, at least that fact could have been memorialized. hindsight is easy.

Absent good cause, it is common for courts to act to minimize the disruption to the children of divorce. That may mean allowing the children to remain in the marital residence until graduation, or to remain in the same school, with the same friends. Here, the father provided no such good cause.

The mother was represented by Brett Kimmel of New York City.

The Family Court Act does declare that both parents are chargeable with the support of their children. Moreover, the Family Court Act does not make a distinction between the “custodial” and “non–custodial” parents when declaring that parents of a child under the age of 21 years ,“if possessed of sufficient means or able to earn such means, shall be required to pay for child support a fair and reasonable sum as the court may determine.” F.C.A. §413(1)(a). (The Domestic Relations Law contains no such preamble to its section providing for an award of child support within matrimonial actions.)D.R.L. §240(1-b).

However, those same Family Court Act and the Domestic Relations Law provisions provide that awards of child support “shall″ be made “pursuant to the provisions” of those subdivisions. The subdivisions, then, set out the presumptive formula to determine awards of child support. The presumptive formula is to be varied only in the event the court finds, based upon factors specified, that the “non-custodial parent’s pro rata share of the basic child support obligation is unjust or inappropriate.” In all events, the statutes only contemplate support being paid by the non-custodial parent to the custodial parent.

Although the statutes carefully define many of the terms used, “non-custodial parent” is never defined. Thus, in ever-increasing scenarios, the courts have had to decide who is the “non-custodial.”

In Bast v. Rossoff, 91 N.Y.2d 723, 675 N.Y.S.2d 19 (1998), the Court of Appeals recognized that in most instances, the court can determine the custodial parent by identifying which parent has physical custody of the child for a majority of the time. In cases where the child’s time was divided approximately equally between the parents, the more-monied parent has been deemed the non-custodial parent because such a rule maximizes the benefits realized by the child at both homes. Baraby v. Baraby, 250 A.D.2d 201, 681 N.Y.S.2d 826 (3rd Dept. 1998).

Nonetheless, the best interests of a child may require an award of child support from the custodial parent to the non-custodial parent.

Take, for example, New York County Supreme Court Justice Ellen Gesmer’s February 29, 2012 decision in M.R. v. A. D. In that case, the court denied a father’s motion for summary judgment dismissing a mother’s claim for child support. In a painstaking decisionmade earlier in the case, Justice Gesmer (32 Misc.3d 512, 928 N.Y.S.2d 429) awarded the parents “parallel custody” of their 6-year old son with significant learning disabilities. After a through review of the evidence, and as neither parent was sufficiently better than other parent to warrant an award of sole custody, Justice Gesmer gave the father primary custody during school year, and gave the more permissive and disorganized mother primary custody during summer and other school breaks.

As a result, the child would be with the father 56% of the time. It was the father who would be responsible for structuring the life of this special-needs child during the school year. In contrast, the child was with the mother for most of the weekend- and vacation time.

Nevertheless, the circumstances of this case clearly warranted an award of child support from the father to the mother.

The father was worth $20 million; earning millions of dollars each year. On the other hand, the mother, a licensed real estate agent, had a negative net worth and claimed no recent income other than support previously awarded.

Here. this child was entitled to a comfortable home when spending time with his mother. Moreover, and without judging the ability of the mother to earn a living or to take care of herself, the father could easily afford to pay child support, providing his child with the surroundings to which the child was entitled year-round.

In order to reach that result, Justice Gesmer was required to label the mother as the custodial parent. Whether or not this was a matter of fitting a square peg into a round hole, it was the right result for this child.

However, for the law to require Justice Gesmer to declare why, in this case, the father was the non-custodial parent was, simply, wrong and unnecessary. The child support statutes should have as a starting point an award of child support from the custodial parent to the non-custodial parent in accordance with the presumptive formula. However, if such an award would be unjust or inappropriate, as determined with reference to the enumerated statutory factors, the court should simply be empowered to make the appropriate award from one parent to the other, custodial or not. The statutes should be amended to give our judges the power to do make such decisions without having to defy logic and rules of statutory construction.

Generally, a parent’s obligation to support a child terminates when the child reaches age 21. That general rule, of course, may be varied by the parents themselves by agreement.

Indeed, it is quite common to extend by agreement a parent’s support obligation, beyond the date on which a child turns  21, in a written separation agreement or divorce action stipulation of settlement, whether written or entered in open court. Such agreements often have an “emancipation” clause which defines the circumstances under which a child will be deemed emancipated for the purposes of the parent’s support obligation to a time either before or after child reaches age 21. Again, it is common to delay emancipation until the child turns 22 or thereafter, if the child is enrolled on a full-time basis in an accredited college, university or other post-high school educational program. If properly entered, such agreements are routinely incorporated into divorce judgments or other support orders. They are enforceable in both Supreme and Family Courts.

In its January, 2012 decision in Shapiro v. Shapiro, the Third Department affirmed a divorce judgment which, in part, obligated a father to contribute his pro rata share of college expenses until each child reaches the age of 22.

The court acknowledged that absent an agreement extending the obligation, a parent is not legally obligated to pay college costs for a child that has reached the age of 21. However, the court found that such an agreement could be inferred from statements which did not expressly exclude post-21 expenses from a statement agreeing to contribute to college. The sole basis of the Third Department’s decision was as follows:

Plaintiff acknowledged in his testimony that he had, in fact, agreed to pay part of the children's college education costs, there was no indication that he intended to limit his payments to the children's first three years in college, and proof at trial established that funds had been previously set up to assist in such costs. Under these circumstances, it was not error for Supreme Court to direct plaintiff to pay a portion of the children's college costs until they reach the age of 22.

Moreover, a parent should not be required to couch every answer in a support hearing with the caveat, “but not beyond my child turning 21.” Nor should a parent’s attorney be required, as a matter of due course, to specifically inquire whether a parent desires to stop his or her support obligation at the child turning 21.

Why stop at reaching 22? Certainly the child who despite best efforts needs a fifth year to obtain a degree also needs a parent’s support.

It was clear that the appellate court did not like Mr. Shapiro. After all, he appears to have wasted judicial resources and caused his wife unnecessary anguish by successfully contesting the divorce case which his wife commenced in December, 1999, when the parties separated. At that time, there was no no-fault divorce. If the grounds required by New York could not be established, spouses, like the Shapiros, remained married.

The court got “even.” Despite having been physically separated for more than a decade, the court affirmed the decision of Schenectady County Supreme Court Justice Mark L. Powers which awarded Ms. Shapiro a half-share of her husband’s pension which accrued up to the point that Mr. Shapiro started his action in 2008. New York’s Equitable Distribution law gives a trial court a tremendous amount of discretion to do justice when dividing the marital property of the parties. By law, the cut-off date for the acquisition of marital property was, here, when the husband commenced his successful divorce action (not when the wife commenced her unsuccessful action).

Not liking a litigant, however, is not an excuse to bend, if not break long-standing and well-understood interpretations of very clear statutes. Domestic Relations Law §236, itself, imposes significant formalities upon agreements which are intended to vary a couple's financial rights and obligations incident to their divorce. Those formalities were not followed here. For a court to dismiss those formalities does not do the judicial system “justice.”

In the February 7, 2012 decision in Khaira v. Khaira, the Appellate Division, First Department, considered the breadth of D.R.L. §236B(5-a). No longer was the temporary (pendente lite) maintenance award used simply to “tide over the more needy party,” but rather to provide “consistency and predictability in calculating temporary spousal maintenance awards.” The amendment “creates a substantial presumptive entitlement.”

The First Department modified the April 1, 2011 order of New York County Supreme Court Justice Deborah A. Kaplan.  In the case before it, Justice Kaplan had “properly followed the initial procedures” to determine that the presumptive temporary maintenance award would be $138,000.00 per year ($11,500.00 per month), at least based on the husband’s first $500,000.00 of income. Justice Kaplan, then, analyzed the reasonable needs of the wife and children after taking into account husband’s payment of the mortgage and health insurance and expenses. Justice Kaplan, then, awarded the wife $13,870.00 in monthly unallocated spousal and child support payments, in addition to requiring the husband to pay the $5,317.00 monthly mortgage payments and the family’s $855.00 monthly health care premiums and medical expenses. The award and expenses totaled $20,041.00 per month. Justice Kaplan, however, did not discuss the factors required by the amendment to be considered when making an award in excess of the formula applied to the first $500,000.00 of a spouse’s income.

Before remanding the issue to Justice Kaplan for redetermination, the First Department focused on the “suggestion” inherent in her decision “that the formula was intended to cover the support needs of the non-monied spouse, such as food and clothing, but not the cost of the mortgage payments for her residence.” However, because any specific reference to the carrying charges for the marital residence was absent from the temporary maintenance formula amendment, the First Department considered:

[It was] reasonable and logical to view the formula adopted by the new maintenance provision as covering all the spouse's basic living expenses, including housing costs as well as the cost of food and clothing and other usual expenses.

The First Department noted that prior to the amendment, it was common to award support both in cash payments to the spouse as well as to third-parties. That practice was “not only eminently reasonable, but also the most expedient way of covering payment of the necessities, and protecting the home as a marital asset.” The “new approach” changes that, instead awarding “the amount that will cover all the payee’s presumptive reasonable expenses.”

The First Department did not rule out the possibility of a direct mortgage payment, but, as required by the statute, only after the analysis of income in excess of the $500,000.00 cap was made.

The impact of this decision is clear.  However, it also reveals the lack of logic in the remaining support calculations required by the various support provisions.

Justice Fisher presumed the new temporary maintenance statute also involve the double-counting of marital residence carrying charges. To avoid this, Justice Fisher first deducted the annual $25,984.08 cost for marital residence mortgage, real estate taxes, utilities, and homeowners insurance (i.e., the “carrying cost credit”) from the husband’s $73,478.00 annual income (net of payroll taxes). The resulting temporary maintenance award under the formula was $12,361.18 ($1,030.10 per month). The husband would be left with $35,132.74 after paying carrying costs and temporary maintenance.

Justice Fisher, then, applied the C.S.S.A. formula to this net amount and directed the husband to pay $5,965.48 per year ($497.12 per month) in temporary child support.

Then, Justice Fisher did his reality check. Justice Fisher declared that the Court was entitled to consider the size of the total award in relation to the total resources available as a permissible qualitative factor to determine whether the presumptive formulas were inappropriate. He projected the husband’s state and federal income taxes at another $7,295.00 per year. This resulted in a total annual “expense burden” on the husband of $51,605.74 (for carrying costs, maintenance, child support and taxes), leaving the husband with $21,872.26 for his personal living expenses.

With this analysis, the Court determined that it should reduce the temporary maintenance award to $8,000.00 annually ($666.67 per month). Then, after reducing the maintenance award, Justice Fisher adjusted the temporary child support (because temporary maintenance is subtracted to arrive at C.S.S.A. income) to be $6,714.23 ($559.52 per month).

Justice Fisher criticized the “senselessness of a statutory presumption expressed wholly in formulaic fashion balanced against (again, statutory) deviation factors requiring a wholly qualitative assessment and determination of the parties' respective circumstances.”

[T]he statutory percentages chosen by the legislature for the presumptive award formula bears no relationship to any conceivable notion of reasonableness, appropriateness, let alone justice, in a case involving respective income levels such as this.

Justice Fisher concluded:

This case illustrates the very real need to scrap the entire temporary maintenance scheme enacted last year. In the absence of a repeal, the statute should be amended to require the court to deduct the temporary maintenance award from the payor's gross income before making the CSSA calculation . . . ; to permit such deduction in temporary maintenance cases only without ordering pretrial a specific adjustment [upon cessation of maintenance]; . . . and [to] readjust the presumptive percentages in making the temporary award along a sliding scale of incomes to ameliorate the devastating financial effects imposed by the presumptive awarded income level such as this one so that judges can quickly make awards without the intensive effort required to deviate in the pre-discovery phase of the case.

Obviously, results under the First Department’s decision in Khaira would be different. Applying the temporary maintenance formula to the incomes of the parties (without deducting the “carrying cost credit”) in Martin v. Buckley would result in a temporary maintenance award of $20,156.40 annually ($1,679.70 per month), leaving the husband with $53,321.60.

After this calculation, however, the decision of the First Department in Khaira fails to address the remaining substantial inconsistency. Under Khaira, one does not subtract carrying costs from income when determining the temporary maintenance award. However, prior caselaw holds that the credit is applied when determining temporary child support. Cohen v. Cohen, 286 A.D.2d 698, 730 N.Y.S.2d 343 (2 Dept. 2001);  Krantz v. Krantz, 175 A.D.2d 863, 573 N.Y.S.2d 736 (2 Dept. 1991).

With Martin v. Buckley, the parents apparently live in separate households. In addition to his own carrying costs, Should Mr. Martin be required to pay half, or some other percentage (perhaps pro rata based upon the parent’s incomes) of the carrying costs of Ms. Buckley’s home attributable to their child’s shelter. If so, does Mr. Buckley’s portion (as well as the temporary maintenance award) get deducted from his income before applying the C.S.S.A. Percentage.

There, Mr. Buckley’s income net of maintenance (but without the carrying cost credit), would have been $53,321.60. This is 84.97% of the combined parental income of $62,756.60 (without adding the maintenance award to Ms. Buckley's income). Applying the 17% rate for 1 child would result in a temporary child support award of $9,064.67 annually ($755.39 per month).

Should Mr. Buckley pay his pro rata share of the child’s carrying costs, 84.97% of one half of the $25,984.08 in total carrying costs, or $11,039.34?

But then that share would have to be deducted from his income before computing the child support award. The father’s income would be reduced to $42,282.26. . . . But then the combined parental income would be reduced, now only $51,717.26. . . . But then the father’s share of combined parental income would be 81.76%. . . . But then the pro rata share of carrying would change, as would the credit, as would the net income, and so on, and so on.

The remedy is to provide a workable, logical series of calculations. Following Khaira, no more credits. The temporary maintenance amendment brings us from the era of needs-based awards the age of the redistribution of income.

First, apply the maintenance formula to the monied spouse’s income net of payroll taxes. Then, apply the C.S.S.A. formula to the parents’ incomes as “redistributed.” Include the temporary maintenance award in the non-monied spouse’s income when determining pro rata shares.

Divide the carrying costs by the number of people in the residence. The monied spouse, if a resident, pays his or her share. However, the support recipient pays not only his or her own share, but the shares of the children. Carrying costs are included within a base child support; they are not an add-on.

Once this is done, do a reality check. See how much each parent has left for his or her own needs and those of the children. If that is inappropriate, adjust.