Divorce: New York

Divorce: New York

Lifetime Maintenance (Alimony) Awarded To Wife Capable of Working

Posted in Maintenance

Alimony handedIn its June 4, 2015 decision in Orioli v. Orioli, the Appellate Division, Third Department, affirmed an award of lifetime maintenance (alimony).

The parties were married in 1989 and had two children. In 2009, the wife commenced this action for divorce. Chenango County Supreme Court Justice Kevin M. Dowd awarded the wife nondurational maintenance of $78,000 per year, to be decreased to $50,000 per year once she reached the age of 62. Maintenance would only terminate upon either party’s death or the wife’s remarriage.

The Third Department affirmed, holding that Justice Dowd did not abuse his discretion in his award of maintenance to the wife.

The amount and duration of a maintenance award is left to the sound discretion of a trial court that has considered the statutory factors and the parties’ predivorce standard of living.

A spouse’s ability to become self-supporting with respect to some standard of living in no way (1) obviates the need for the court to consider the predivorce standard of living; and (2) certainly does not create a per se bar to lifetime maintenance.

Indeed, Justice Dowd had addressed the numerous statutory factors and the predivorce standard of living when making the permanent award.

Among other things, he considered the evidence that the marriage was of a long duration (20 years). Justice Dowd further considered that one of the parties’ children resided with the wife, that maintenance would be taxable for the wife and tax deductible for the husband.

It was also noted that the wife had wastefully dissipated $120,000 of marital assets, and lacked candor in her statement of net worth.

Justice Dowd also considered that as of 2009, the husband had reported income of approximately $425,000, while the wife had no income that year. On the other hand, the wife was now capable of working and earning at least $32,000 a year. She did not require additional time or training to gain such employment. Her earning capacity was not affected by her choice not to work during portions of the marriage.

Finally, Justice Dowd recognized that the wife had enjoyed a comfortable standard of living that was commensurate with the husband’s income.

Given the totality of the evidence, we agree that it is unlikely that the wife will become self-supporting so as to attain the lifestyle to which she had been accustomed to during the course of the approximately two-decade marriage.

Accordingly, the appellate court concluded that nondurational maintenance in the amount awarded, which included a reduction in that award at a set future date, was not an abuse of discretion.

William H. Getman, of Woodman & Getman, of Waterville, represented the wife. Michael S. Sinicki, of Hinman, Howard & Kattell, LLP, of Binghamton, represented the husband.

Does Shared Custody Result In Less Stress Than Other Post-Divorce Parenting Plans?

Posted in Custody and Visitation

Difficult choiceA recent Swedish study based on a survey of almost 150,000 6th and 9th-grade students revealed that children who live equally with both parents after parental separation suffered from fewer psychosomatic problems than those living mostly or only with one parent. As might be expected, children of separated parents generally reported more psychosomatic problems than those in intact “nuclear” families.

A group of Swedish university and government child experts published their results online April 28, 2015 in the Journal of Epidemiology & Community Health in the article, Fifty moves a year: is there an association between joint physical custody and psychosomatic problems in children?

Using responses along the range of “never,” “ seldom,” “sometimes,” “often” and “always,” the survey investigated correlations between parenting arrangements and “psychosomatic” problems including difficulties in (1) concentration and (2) sleeping; suffering from (3) headaches and (4) stomach aches; feeling (5) tense, (6) sad and (7) dizzy and (8) loss of appetite. The students were asked to respond to the survey questions with

The authors noted that during the past 20 years, it has become more common for children in the Western world to live alternatively and equally with both parents after a parental separation. In Sweden, this practice of joint physical custody is particularly frequent and has risen from about 1–2% in the mid-1980s to between 30% and 40% of the children with separated parents in 2010.

Over the same period, however, there has been an increase in self-reported pediatric psychosomatic symptoms. Already, stressful circumstances such as bullying, economic stress in the family, peer and teacher relationships, schoolwork pressure and lack of emotional support from the parents have been shown to be related to psychosomatic symptoms in Swedish adolescents.

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

Posted in Agreements and Stipulations, Child Support (C.S.S.A.)

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

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

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

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

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

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

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

Posted in Agreements and Stipulations, Child Support (C.S.S.A.)

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

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

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

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

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

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

The Agreement defined various emancipation events, including:

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

The emancipation Article also contained the following handwritten provision:

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

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

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The Temporary Maintenance Formula And Home Carrying Costs

Posted in Temporary (Pendente Lite) Relief

Calulator on 100sWhen one spouse is paying all the carrying costs of the home, it is appropriate to reduce the presumptive temporary maintenance formula award to the other spouse by half of those costs.

So held the Appellate Division, Second Department, in its May 20, 2015 decision in Su v. Su, affirming an order of Nassau County Supreme Court Justice Jeffrey Goodstein that directed a wife to pay of the expenses of the home in which the parties were residing while the action was pending plus temporary maintenance to the husband of $200 per month.

In the divorce action commenced by the wife, the husband moved for pendente lite relief seeking, among other things, temporary spousal maintenance in the sum of $4,500.15 per month and to compel the wife to pay all of the carrying costs associated with the marital residence, where both he and the wife continued to reside.

In his order, Justice Goodstein directed the wife to pay 100% of the carrying costs associated with the marital residence, totaling $5,003 per month.

Using the statutory temporary maintenance formula (Domestic Relations Law § 236[ B][5-a][c]), Justice Goodstein also calculated the husband’s presumptive award of temporary maintenance to be $2,057 per month, but found that “it would be unjust and inappropriate” to direct the wife to pay both all of the carrying costs associated with the marital residence plus the presumptive award of temporary maintenance. Therefore, the court downwardly deviated from that presumptive award of temporary maintenance, and awarded the husband the sum of $200 per month.

The husband appealed, contending that the Supreme Court erred in its method of calculating the presumptive award of temporary maintenance and in awarding him the sum of only $200 per month.

Here, the Second Department agreed that the “significant downward deviation from [the] presumptive award of temporary maintenance” was appropriate.

The formula to determine temporary spousal maintenance . . . is intended to cover all of the payee spouse’s basic living expenses, including housing costs of food and clothing, and other usual expenses. . . In addition, where both parties continue to reside in the marital residence and one party is ordered to pay the carrying costs, the payor spouse may be credited with half those costs.

Here, nearly all of the husband’s basic living expenses included in the presumptive award of temporary maintenance were already to be paid by so much of the order as directed the wife to pay 100% of the carrying costs associated with the marital residence, as the court calculated these carrying costs to include the monthly costs for the mortgage, gas, electricity, telephone, water, groceries, home entertainment, household repairs, appliances, laundry, gardening/landscaping, and snow removal.

Moreover, the appellate court noted, the husband failed to demonstrate that the pendente lite award of $200 per month would leave him unable to meet his financial obligations. Under the circumstances, the Second Department held that Justice Goodstein properly downwardly deviated from the presumptive award of temporary maintenance to award the husband the sum of $200 per month

Comment: Although the decision notes that the carrying costs totaled $5,003 per month, it is not clear whether each of the open-ended obligations were capped. Thus, requiring the wife to pay all of the bills for groceries, home entertainment, and repairs, etc., could be problematic. Party at the Su home: caviar and white truffles to be served.

Philip Sands, of Garden City, represented the wife. Thomas Weiss & Associates, P.C., of Garden City, represented the husband.

Attorney’s Charging Lien Enforced Against Child Support Arrears

Posted in Attorney and Client, Child Support (C.S.S.A.)

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

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

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

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

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“Marital” Debt Incurred After Post-Divorce Action Commencement

Posted in Equitable Distribution

DebtAmong other errors the Appellate Division, Second Department, addressed in its May 6, 2015 decision in Sawin v. Sawin, was the award to the wife of an $8,000 credit for her post-divorce action assumption of a $16,000 credit card debt. At trial, the wife testified that she incurred this debt over a two-year period starting approximately six months before the divorce action was commenced.

First, the Second Department noted that, generally, credit card debt incurred prior to the commencement of a matrimonial action constitutes marital debt and should be equally shared by the parties. However, debt incurred after the commencement of a matrimonial action typically is the responsibility of the party who incurred the debt.

Nonetheless, the appellate court noted that post-commencement debt incurred in connection with household living expenses and clothing for the parties’ children is debt that can be divided between the parties, even if incurred after the commencement of such an action. On the other hand, debt incurred for the purchase of personal items for one of the parties cannot be so divided.

Here, Putnam County Supreme Court former Justice Francis A. Nicolai noted that the expenses reflected in the credit card records were for food and clothing for the children and clothes for the plaintiff. However, as the record on appeal did not show what portion of the debt was incurred prior to the commencement of this action, or the amount of that debt which was incurred to meet the plaintiff’s personal, rather than marital, obligations, the issue was required to be remitted to the Supreme Court to make those findings and to make an award, if appropriate, consistent with such findings.

[Comment/Question: In this action, there were also awards of child support and maintenance. If such awards were made retroactive to commencement of the divorce action, should not such have overlapped, if not negated, any debt the wife incurred to meet the living expenses she faced during the action?]

The Second Department noted that Justice Nicolai had also erred when determining that the wife was entitled to a credit based upon a loan she took out against her 401(k) account. Justice Nicolai had equitably distributed the 401(k) account so that each party would receive 50% of the account balance as of the date of the commencement of this action, plus or minus gains or losses until the date of segregation.

The wife testified that she took the loan out after the date of the commencement of this action, from her distributive share of the account, intending to use the loan to pay for college expenses for the parties’ oldest child. However, the wife did not, in fact, use the loan proceeds to pay for such expenses.

As the money from the loan was not used to pay for college expenses or for marital benefit, it was not a marital debt subject to equitable distribution. Accordingly, the wife was not entitled to any credit for that loan.

Jason A. Advocate, of Advocate & Lichtenstein, LLP (John H. Hersh, former counsel on the brief), of Manhattan, represented the husband. Sarah R. Scigliano, of Stephen M. Santoro, Sr., P.C., of Carmel, represented the wife.

Crediting Child Support For College Room And Board Payments: Sawin II

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

Education savingsA parent who pays all or some portion of a child’s college room and board expenses is often entitled to a credit against that parent’s base child support obligation. The Appellate Division, Second Department, in its May 6, 2015 decision in Sawin v. Sawin, appears to hold that such credits may only be taken only against the base child support obligation for the child attending college and then only for the months that the child is away at school.

In Sawin, the parties were married in 1988 and had three children.  During the marriage, the husband worked as a firefighter, and in 2011, he earned approximately $122,500. The wife stopped working full-time after the birth of the parties’ second child in 1994. In 2004, she began working part-time as a real estate agent, earning approximately $15,000 in 2010 and $23,000 in 2011.

In December 2010, the wife commenced this matrimonial action seeking, among other things, child support, maintenance, and equitable distribution. At the time of trial in February 2012, the parties’ oldest child was in college and resided on campus during the school year.

The Second Department noted that among other rulings Putnam County Supreme Court former Justice Francis A. Nicolai properly directed the husband to pay a proportionate share of the children’s college expenses as part of the child support award. However, the appellate court noted that the husband was entitled to a credit for at least some portion of the college room and board expenses he paid.

The child support award should have included a provision either directing that, when a child is living away from home while attending college, the [husband’s] monthly child support obligation shall be reduced, or awarding the [husband] a credit against his child support obligation for any amounts that he contributes toward college room and board expenses for that child during those months.

Accordingly, the Second Department remitted the issue for a determination of the husband’s child support obligation “for any time periods that one or more of the parties’ children are living away from home at college.”

Comment: The rule, although logical, may be both difficult to apply and inequitable. For example, what happens in December and January when a child is home half the time for intersession or the winter recess. Do we start having to count the days?

No. The entirety of the room and board expense gets spread over the total number of days the child is away at school. One way or the other, a potential credit should be available for the entire expense.

The bigger problem is capping the credit at the total base child support obligation attributable to the child attending college. Take this family with three children. The child support formula would use 29% of parental income to determine that base obligation. After one of the children is emancipated, 25% is the formula percentage.

Does that mean that only 4% of parental income is being used to support the eldest child? No. 29% is being used to support all three children. The credit should be available against one third of the base obligation.

Of course, not every penny of the support for the child in college is earmarked for room and board at school. The overhead expenses of the home must still be paid. There are also expenses for clothing, vacations, etc.

All that being said, the time and cost of proving the equities in a case would outweigh the credit. A rule is necessary.

Yesterday’s blog post discuss the maintenance and basic child support awards. Tomorrow’s post will discuss giving credits to the wife for debts she incurred after the divorce action was commenced.

Jason A. Advocate, of Advocate & Lichtenstein, LLP (John H. Hersh, former counsel on the brief), of Manhattan, represented the husband. Sarah R. Scigliano, of Stephen M. Santoro, Sr., P.C., of Carmel, represented the wife.

Child Support and Maintenance: A Case Study: Sawin I

Posted in Child Support (C.S.S.A.), Maintenance

Calulator on 100s 3It’s worthy of note when enough information is provided in an appellate decision to see “how” maintenance and child support were computed. The May 6, 2015 decision of the Appellate Division, Second Department, in Sawin v. Sawin, provides such an opportunity.

In Sawin, the parties were married in 1988 and had three children. During the marriage, the husband worked as a firefighter, and in 2011, he earned approximately $122,500. The wife stopped working full-time after the birth of the parties’ second child in 1994. In 2004, she began working part-time as a real estate agent, earning approximately $15,000 in 2010 and $23,000 in 2011. In December 2010, the wife commenced this matrimonial action seeking, among other things, child support, maintenance, and equitable distribution.

The Second Department held that Putnam County Supreme Court former Justice Francis A. Nicolai providently awarded maintenance to the plaintiff for a period of eight years, and that the amount of the award, $2,000 per month, was not excessive. The Second Department noted that it is well established that, as a general rule, the amount and duration of maintenance are matters committed to the sound discretion of the trial court. Inasmuch as Justice Nicolai properly considered the factors set forth in Domestic Relations Law § 236(B)(6)(a), his award of maintenance was not improvident. Moreover, taking into consideration the financial circumstances of the parties, neither the duration, nor the amount of maintenance was excessive.

Justice Nicolai had also directed the husband to pay child support in the sum of $2,220.33 per month. That award, too, was upheld.

Although there was no specific discussion of methodology or formulas, it may be noted that the award for 8 years, after this 22 marriage, was a period of approximately 36% of the length of the marriage. The maintenance amount of 24,000 per year, happened to be approximately 25% of the income of the husband net of the income of the wife. Child support for the three children was $2,220.33 per month ($26,643.96 per year). That sum was approximately 29% of the husband’s 2011 income less FICA and Medicare taxes and the $24,000.00 in maintenance.

Tomorrow’s blog post will discuss giving the husband credit for paying college room and board expenses. Thursday’s post will discuss giving credits to the wife for debts she incurred after the divorce action was commenced.

Jason A. Advocate, of Advocate & Lichtenstein, LLP (John H. Hersh, former counsel on the brief), of Manhattan, represented the husband. Sarah R. Scigliano, of Stephen M. Santoro, Sr., P.C., of Carmel, represented the wife.

Child Support and the Recently-Employed Parent

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

Pencil calculationIn its May 6, 2015 decision in Thompson-Fleming v. Fleming, the Appellate Division, Second Department, reversed the determination of Kings County Family Court Support Magistrate Kathryn A. Baur that had based a child support award on the father’s 2013 mid-year earnings-to-date. The Magistrate failed to account for the fact that the father had been unemployed for the first three months of that year, beginning his employment on March 28, 2013.

The father’s year-to-date earnings were shown on the his pay stub for the two-week period ending on July 13, 2013. Rather than using those year-to-date earnings, the Second Department held that the Magistrate should have annualized the father’s bi-weekly pay. Under these circumstances, the Support Magistrate should have taken the pay stub’s pay period figure and multiplied that figure by 26 to determine the father’s annual income, rather than rely upon the year-to-date figure.

As the Support Magistrate miscalculated the father’s income in determining the father’s child support obligation, Kings County Family Court Judge Michael A. Ambrosio should have granted the mother’s objection to Magistrate Baur’s order and recalculated the father’s income. Therefore, the appellate court remitted the matter for a recalculation of the father’s annual income and a redetermination of his child support obligation in accordance therewith. In the interim, the father was directed to continue to pay the mother the sum of $535 bi-weekly in child support.