Under Family Court Act §413-a, a party receiving public assistance, or making use of the State’s Child Support Enforcement Services, may request that the Support Collection Unit (“SCU”) review the order for an adjustment of a child support order in the event that there is a 10% change in the cost of living. The SCU, calculates the new order and mails it to the parties. If there is no objection, the adjusted order becomes final without further review by a court.
Either party, however, may object to the cost-of-living adjustment by making an application to the court. Where an objection is timely filed, the cost of living adjustment does not take effect, and after a hearing, the court may issue a new order of support determined in accordance with the Child Support Standards Act, or make a determination that no adjustment is appropriate. Notably, “Any order of support made by the court under this section shall occur without the requirement for proof or showing of a change in circumstances.” F.C.A. §413-a(c)
In Tompkins Cty. Support Collection Unit ex rel. Chamberlin v. Chamberlin, 99 N.Y.2d 328, 756 N.Y.S.2d 115, 786 N.E.2d 14 (2003), the Court of Appeals determined that F.C.A. §413-a authorizes the Family Court to review and adjust the underlying support order in accordance with the C.S.S.A., and not merely to decide whether or not the COLA amount should be applied.
Thus it has been held that upon a review of a COLA order, a Support Magistrate may make a C.S.S.A.- guideline order s “without the requirement for proof or showing of a change of circumstances” F.C.A. §413-a(3)(c). Therefore, once an objection to a COLA adjustment is made, the parties are not required to demonstrate a change of circumstance or otherwise show that an increase is required to meet the needs of the children. Matter of V.C. v. J.S., 16 Misc. 3d 1110(A), 847 N.Y.S.2d 899 Oswego Co Fam. Ct. 2007).
In its November 16, 2016 decision in Thompson v. Sussman, the Appellate Division, Second Department, considered one example of reconciling a COLA adjustment with the burden otherwise needed to demonstrate a child support modification is warranted.
In Thompson, the parties were the divorced parents of two children. In October 2005, the parties entered into a stipulation of settlement which was incorporated but not merged into a judgment of divorce entered June 1, 2007. Under the terms of the stipulation, the parties agreed that the mother would have primary residential custody of the children, but that they would share a nearly equal amount of parenting time. The stipulation required the father to pay child support in the sum of $900 per month, and included a provision stating that the parties had opted to deviate from the Child Support Standards Act (Domestic Relations Law § 240[1-b]) in calculating the father’s support obligation in light of several factors, including “the fact that [the father was being given] nearly equal time with the children.”
On July 20, 2013, the Suffolk County Support Collection Unit issued a cost-of-living adjustment order pursuant to Family Court Act § 413-a which increased the father’s support obligation to $994 per month.
Apparently, there was no objection filed by either party to this order. Instead, more than a year later, the mother commenced a proceeding for an upward modification of the father’s child support obligation.
At the conclusion of a hearing, Suffolk County Support Magistrate Barbara Lynaugh granted the mother’s petition. The father filed objections, contending that as the stipulation setting forth his child support obligation predated the 2010 amendments to Family Court Act §451, an upward modification could be granted only if the mother established an unforeseen change in circumstances resulting in a concomitant need.
Suffolk County Family Court Judge Martha L. Luft denied the father’s objections. Judge Luft determined that as the SCU had issued an order adjusting the father’s support obligation in 2013, the 2010 amendments to Family Court § 451 applied, and the mother was entitled to an upward modification pursuant to Family Court § 451(3)(b)(ii). That provision permits modification where “there has been a change in either party’s gross income by fifteen percent or more” since the prior support order was entered. The father appealed.
The second Department reversed. Contrary to the Family Court’s determination, the appellate court held that the 2010 amendments to Family Court Act §451 did not apply here because the stipulation setting forth the father’s support obligation was executed prior to the effective date of those amendments. Furthermore, the fact that the father’s support obligation was adjusted in 2013 pursuant to Family Court Act § 413-a did not make the 2010 amendments applicable to this proceeding.
The Second Department noted that Family Court Act § 413-a(4) itself provides that “[n]othing herein shall be deemed in any way to limit, restrict, expand or impair the rights of any party to file for a modification of a child support order as is otherwise provided by law.”
As the 2010 amendments did not apply, in order to establish her entitlement to an upward modification of the father’s child support obligation, the mother was required to establish a substantial and unanticipated change in circumstances resulting in a concomitant need. The mother failed to meet that burden. The mother also failed to establish that there had been any significant change in the amount of parenting time the father spent with the children, or that the needs of the children were not being met by the current level of support. Accordingly, the Family Court should have granted the father’s objections to the Support Magistrate’s order in their entirety, and denied the mother’s petition for an upward modification.
In Thompson, the mother did not object to SCU’s COLA 2013 adjustment, but rather started a new modification proceeding a year later. What would be the result if a party to a pre-2010 agreement does file an objection to an SCU Cola adjustment. How, then, do you reconcile the provisions of F.C.A. §413-a(3)(c) with F.C.A. §413-a(4).
The former section provides that any order of support made by the court when there has been an objection to a SCU COLA adjustment shall occur without the requirement for proof or showing of a change in circumstances. On the other hand 413-1(4) provides, that “Nothing herein shall be deemed in any way to limit, restrict, expand or impair the rights of any party to file for a modification of a child support order as is otherwise provided by law.”
Bernard A. Nathan, of West Islip, represented the father. James F. Hagney, P.C., of Huntington, represented the mother.