Divorce: New York

Divorce: New York

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.

Divorce Agreement Reformed Where DRO Not Available To Divide Deferred Compensation Plan

Posted in Equitable Distribution

1040 name-statusIt’s always nice to see a court cut through the red tape and do the right thing. It doesn’t always work out that way. Here it did.

In its April 29, 2015 decision in Dickson v. Dickson, the Appellate Division, Second Department, reversed Westchester County Supreme Court Justice John P. Colangelo to solve a practical problem resulting from a mistaken assumption in a couple’s divorce settlement agreement.

That agreement provided that the wife would receive one half of the husband’s Time Warner Deferred Compensation Plan benefits. The transfer of the wife’s interest was expressly to be effectuated pursuant to a Qualified Domestic Relations Order (hereinafter QDRO) or a Domestic Relations Order (hereinafter DRO).

What is a Domestic Relations Order? It is common for employers to provide retirement or deferred compensation benefits to their employees. With appropriate plans, there are no income taxes paid by the employee now at time of the employer’s current contributions. Indeed, the employee may also contribute to such plans using “pre-tax” dollars. Income taxes will not be paid on the employer’s or employee’s contributions, or the growth thereon, until the employee withdraws funds from the plan, usually upon retirement.

Incident to a divorce, a share of such plan benefits is often to be paid over, now, to the employee’s spouse. Were that to be accomplished by the employee withdrawing the spouse’s share and paying over the funds withdrawn to the spouse, such could constitute a current invasion of the plan, a withdrawal from the fund subjecting the employee, now, to income taxes, if not early withdrawal penalties, as well.

A Domestic Relations Order is a court decree recognized by the Internal Revenue Service that allows the division of retirement plan benefits incident to a divorce, without triggering current income taxation or early withdrawal penalties. Rather, the employee’s spouse will be subjected to income taxes only when the spouse accesses that share when, as and if withdrawals are made (or if the share is not properly rolled over into an appropriate tax-deferred account of the spouse).

That is precisely what the Dicksons contemplated here. The wife was to receive half of the husband’s Time Warner Deferred Compensation Plan. A Domestic Relations Order was to be used to prevent the transfer to the wife being a taxable event. Rather, the wife would pay income taxes on the amounts she received when, as and if she did so.

However, in this instance the Time Warner Deferred Compensation Plan was not the type of benefit plan that could be made the subject of a Domestic Relations Order. Instead, for the husband to pay over to the wife her 50% share, such would be treated as a current invasion. The husband would, now, be subjected to income taxes on the amount withdrawn and paid over to the wife.

Continue Reading

Divorce And The Midlife Crisis

Posted in Divorce

midlife crisisI have no statistics, but it certainly appears as if a disproportionate number of the people consulting me are 43 to 46 years old husbands. I consider that the age of the male midlife crisis. I must count myself among that group.

However, a recent article in the March/April 2015 issue of Scientific American Mind , Debunking Midlife Myths, by Hanna Drimalla, a psychologist and freelance journalist in Berlin, may have a different view. That article notes that psychological studies suggest that midlife crises are real, but the stereotypes are not.

Dr. Drimalla begins by telling of the fortysomething middle manager who quits his day job, buys a sports car and abandons his wife for younger woman. According to scientists, hallmarks of midlife include increased self-reflection, aging, career and family changes, which can seed deep dissatisfaction. However, the author notes that many common beliefs about the midlife meltdown are untrue.

Among other areas, Dr. Drimalla notes that midlife stress does not foredoom us to a life out of control, especially in our relationships. A 2011 Kinsey Institute study of more than 1000 couples in Germany, Spain, the United States, Japan and Brazil found that middle-aged men and women rate their relationships and sex lives higher the longer they have been married. Couples entering middle age with a long-term partner have a good chance of staying together.

Of the marriages that do break down, the husband is not typically the one to walk out. According to the National Marriage Project at the University of Virginia, women instigate two thirds of all divorces – most likely not because they are having midlife crises, but because their husbands are behaving badly.

The author suggests that maybe knowing that our misgivings about midlife are usually exaggerated – and temporary – can make the passage to late maturity just a bit more manageable.

Perhaps my advice to those fortysomethings who consult me should simply be, “wait it out.”

Reasons To Apply CSSA Formula to Father’s $441,000 Income Must Be Stated; No Private School Payment Without Proof Of Superiority Of Education

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

Calulator on 100s 3In its April 1, 2015 decision in Pittman v. Williams, the Appellate Division, Second Department, reversed a decision of Supreme Court, Kings County Court Attorney/Referee (and now Family Court Judge) J. Machelle Sweeting that awarded child support equal to 17% of the father’s entire $441,000 income.  The Second Department also deleted a requirement that the father pay private school tuition after preschool, and allocated the wife’s child care expense equally between the father’s child and another of the mother’s children for whom care was provided.

In this child support proceeding, the parties’ combined income was $489,937. The father’s income represented 90% of this sum or C.S.S.A.-adjusted income of approximately $441,000 per year; the mother’s 10% share was approximately $49,000. Referee Sweeting directed the father to pay child support in the sum of $6,246 per month, child care expenses in the sum of $291.60 per week, and his pro rata share of the child’s tuition at the Brooklyn Waldorf School.

The Second Department reversed and remitted the matter for a new determination of the amount of the basic child support obligation.

The Child Support Standards Act sets forth a formula for calculating child support by applying a designated statutory percentage, here 17% for one child, to combined parental income up to a particular ceiling. The court, in fixing the basic child support obligation on income over the ceiling, i.e., the “statutory cap” (in this case, $136,000), has the discretion to apply the factors set forth in the statute, or to apply the statutory percentage, or to apply both.

However, there must be some record articulation of the reasons for the court’s choice to facilitate review. The court’s decision should reflect a careful consideration of the stated basis for its exercise of discretion, the parties’ circumstances, and its reasoning why there should or should not be a departure from the prescribed percentage. In addition to providing a record articulation for deviating or not deviating from the statutory formula, a court must relate that record articulation to the statutory factors.

Here, the Second Department held that the Referee properly determined that the parties’ combined parental income was $489,937. However, when determining the amount of child support, Referee Sweeting failed to articulate her reasons for applying the statutory percentage of 17% to the combined parental income over the statutory cap of $136,000. As a result, her determination was reversed. It was held that the matter must be remitted for a new determination in this regard and the court must articulate its reasons for the new determination.

Continue Reading

Parental Alienation Sole Stated Basis For Change In Custody

Posted in Custody and Visitation, Enforcement of Support and Orders

Parental Alienation RibbonThe mother’s alienation of the children from the father was the sole basis stated by the Second Department while upholding a change of custody to the father. In its March 25, 2015 decision in Halioris v. Halioris, the court affirmed an order of Suffolk County Family Court Judge Bernard Cheng.

The Second Department noted that modification of an existing court-sanctioned custody arrangement is permissible only upon a showing that there has been a change in circumstances such that modification is necessary to ensure the best interests of the child.

Parental alienation of a child from the other parent is an act so inconsistent with the best interests of the children as to, per se, raise a strong probability that the offending parent is unfit to act as custodial parent.

As custody determinations turn in large part on assessments of the credibility, character, temperament, and sincerity of the parties, Judge Cheng’s findings in connection with these issues would not be disturbed unless they lacked a sound and substantial basis in the record. Here, the Second Department found that Judge Cheng’s determinations that there had been a change in circumstances, and that a transfer of sole custody to the father would be in the children’s best interests, had such a sound and substantial basis in the record.

Moreover, the Second Department upheld Judge Cheng’s holding the mother in contempt for failing to cooperate with family therapy. Generally, in order to prevail on a motion to hold a party in civil contempt, the movant is required to prove by clear and convincing evidence:

  1. that a lawful order of the court, clearly expressing an unequivocal mandate, was in effect;
  2. that the order was disobeyed and the party disobeying the order had knowledge of its terms; and
  3. that the movant was prejudiced by the offending conduct.

Here, the father met his burden. Specifically, the father showed, by clear and convincing evidence, that the mother, with full knowledge of its requirements, violated a so-ordered stipulation that in part unequivocally mandated that the parties and the subject children engage in, cooperate with, and attend family therapy. The violation of the stipulation by the mother resulted in prejudice to the father. Accordingly, Judge Cheng properly granted the father’s petition to hold the mother in contempt for disobeying the stipulation.

Christopher J. Chimeri, of Hauppauge, represented the mother. The father represented himself. Domenik Veraldi, Jr., of Islandia, served as attorney for the children.

Marital Agreements: Balancing The Literal With The Absurd

Posted in Agreements and Stipulations

Spock illogicalAt the point the literal construction of a contract leads to an absurd result, the actual words should yield to logic and the mutual understanding of the parties. The First Department held otherwise in its March 19, 2015 decision in Buckingham v. Buckingham when depriving the former wife of a 20% share of the stock in a publicly-held company the husband sold for $7,279,117.62.

In this case, under a prenuptial agreement signed eight days before the parties’ marriage, the wife was to receive a percentage of the post-marital appreciation from the proceeds of the sale of that company, Mobile Streams PLC (“MS”).

The husband is the founder and CEO of that company and, at the time of the prenuptial agreement, had a majority interest. MS retails Mobile Content including Apps, Games, eBooks, Music and Videos globally through mobile carrier partners and its Appitalism.com applications storefront.

The agreement stated:

Simon owns approximately 55.83% of the issued and outstanding shares of [Mobile Streams] [ MS’]. If MS or any of its subsidiaries or related companies are sold, and the sale takes place after the occurrence of an Operative Event, and proceeds of sale are not otherwise invested or reinvested in another business enterprise, but rather Simon retains the proceeds for himself and provided the parties are married for five (5) years or more, Simon, will place the following percentages of the net proceeds less the value of the MS shares on the date of marriage, in an account established in Nisha’s sole name which shall be deemed Nisha’s Separate Property:
(i) if the parties are married for 5 or more years – 20%; or
(ii) if the parties are married for 10 or more years – 25%; or
(iii) if the parties are married 15 or more years – 30%; or
(iv) if the parties are married for 20 or more years – 40%; or
(v) if the parties are married for 25 or more years – 50%.

Continue Reading

Increasing Child Support On Appeal: Awards On Income Over The Cap

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

Calulator on 100s 6 redThe Third Department gave us insight into its analysis of child support awards in two recent decisions in which it increased those awards.

What to do when the parents’ combined income exceeds the Child Support Standards Act (C.S.S.A.) cap, now $141,000, appears to be, at the trial level, often county-, if not judge-dependent. Use by the lower courts around the state upon these decisions will vary, perhaps greatly.

In Petersen v. Petersen, decided February 26, 2015, the Third Department increased the divorce-action award of Albany Supreme Court Justice Eugene P. Devine (now, himself, sitting on the Third Department).

The parties had one child, born in 1999. After the parties separated and lived apart for several years, the husband commenced this divorce action based on the parties’ separation agreement. After finding that the child support provision of the separation agreement did not comply with the Child Support Standards Act, a trial was held to address, among other things, child support.

Justice Devine granted the divorce, incorporated the parties’ separation agreement except for the weekly child support provision, and ordered the husband to pay child support in the amount of $414 per week, declining to order child support on any income above the C.S.S.A. statutory cap, then $136,000 (and now $141,000). The wife appealed.

Continue Reading

Temporary Maintenance Award Increased From $96 to Presumptively Correct $784.62 Per Week

Posted in Temporary (Pendente Lite) Relief

Gavel mainIn its February 18, 2015 decision in Dunleavy v. Dunleavy, the Second Department modified the order of Suffolk County Supreme Court Justice Carol Mackenzie by increasing the wife’s temporary maintenance award from $75 to $784.62 per week.

The Second Department noted that Domestic Relations Law § 236(B)(5-a) sets forth formulas for the courts to apply to the parties’ reported income in order to determine the presumptively correct amount of temporary maintenance. It further provides that the court shall order the presumptive award of temporary maintenance in accordance with the formulas, unless it finds that the presumptive award is unjust or inappropriate. If so, the court must set forth, in its written order, the enumerated factors it considered and the reasons it adjusted the presumptive award of temporary maintenance.

Here, Justice Mackenzie applied the statutory formulas set forth in Domestic Relations Law § 236(B)(5-a) and arrived at a presumptive award of $784.62 per week, but found that the presumptive award was unjust and inappropriate. The court awarded the wife only $75 per week in temporary maintenance, a 96% reduction of the presumptively correct award.

The appellate court held that the record did not support any reduction of the presumptively correct award, or otherwise lead to the conclusion that the presumptive award was unjust or inappropriate under the circumstances of this case.

While an appellate court should rarely modify a temporary maintenance award, here, we conclude that justice requires an award equal to the statutorily presumptive award.

The Second Department also held that Justice Mackenzie had improvidently exercised her discretion in awarding the plaintiff an attorney’s fee in the sum of only $2,500. Considering the parties’ relative circumstances, including the disparity in the parties’ respective incomes, and considering all of the relevant factors, the appellate court increased the attorney’s fee to the sum of $7,500.

Of interest here may also be the fact that Justice Mackenzie’s order was dated June 21, 2013 (the motion having obviously been made months before that). It thus took some 20 months for the wife’s temporary support to be increased.

Erik C. Howard, of Foster, Vandenburgh, & Riyaz, LLP, of Westhampton, represented the wife. Alan M. Wolinsky, of Wolinsky, Parnell & Montgomery, LLP, of Lake Ronkonkoma, represented the husband.