Advocate & Lichtenstein LLP

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.

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.

Count the overnights. “Legal” custody or decision-making power does not matter. Child Support is only payable to the parent with the children the majority of the overnights. If overnights are equally shared, the parent with the higher income is deemed to be the noncustodial parent for C.S.S.A. purposes.

Such is the rule of law made clear in two recent Appellate Division cases. In its June 28, 2013 decision in Leonard v. Leonard, the Fourth Department held that despite  the father having sole legal custody, as parenting time was equally shared and the father had the higher income, the father would be deemed the noncustodial parent and obligated to pay child support.

In Rubin v. Della Salla, an April 18, 2013 decision of the First Department, where each parent had spheres of decision-making, it was held that the father with whom the child spent 56% of the overnights could not, as a matter of law, be ordered to pay child support under the C.S.S.A.

In Leonard, upheld the decision of Monroe County Supreme Court J.H.O. to award the husband sole legal custody. The wife sought joint legal custody, bu the Fourth Department agreed that the parents’ acrimonious relationship and inability to communicate effectively with respect to the needs and activities of the children made joint custody not feasible. Moreover, the J.H.O. did not abuse his discretion in failing to split decision-making “zones of influence.”

The Fourth Department, however, held that it was error for the J.H.O. to award child support to the husband. Child support should have been awarded to the wife. As the residency arrangement was shared, and neither parent had the children for a majority of the time, the party with the higher income was to be deemed to be the noncustodial parent for purposes of child support.

Here, the residency schedule affords the parties equal time with the children. Inasmuch as the husband’s income exceeded that of the wife (at the time of trial, the husband earning $134,924.48 annually, with the J.H.O. imputing income of $25,000 to the wife), the husband was the “noncustodial” parent. As such, he must pay child support to the wife.

The Fourth Department acknowledged that the authority presented by the wife involved awards of joint legal custody, whereas the husband, here, was awarded sole legal custody. That fact, however, should not affect the child support determination.

Although the award of sole legal custody to plaintiff allows him to make important decisions in the children’s lives, that decision-making authority does not increase his child-related costs. A parent’s child-related costs are dictated by the amount of time he or she spends with the children.

Continue Reading Parenting Time, Not Legal Custody, Determines Entitlement to Child Support