It appears that the tremendous burden placed on the Appellate Division, Second Department, to work through its caseload has often led to opinions which leave you wanting to know a little more of the facts so you can put the case into perspective.

Take the the Second Department’s May 31, 2017 decision in Fiore v. Fiore, where the lower court’s opinion was modified to increase a father’s college obligation and which determined summer camp to be the equivalent of child care.

After nine years of marriage and one child, the parties settled their divorce action by an amended agreement that was incorporated into their 2000 Judgment of Divorce. Included among the settlement’s provisions were that the father would pay $12,289 annually for basic child support; that the parents would each pay their pro rata share of unreimbursed medical expenses; and that the father would pay 58% of the cost of day care.

In 2014, the mother moved for upward modification of basic child support, and other child support-related relief, including contribution toward the child’s summer camp and college expenses. Supreme Court, Nassau County Justice Julianne T. Capetola denied the upward modification, denied summer camp expenses, and limited the father’s obligation to pay college expenses to $5,000 per semester.

On appeal, the Second Department upheld the denial of an increase in the basic child support obligation. The mother had failed to meet her burden of proving that there had been a substantial, unanticipated, and unreasonable change in circumstances resulting in a concomitant need, or that the settlement was not fair and equitable when entered into. This was the required burden as the amended stipulation of settlement was entered prior to the effective date of the 2010 amendments to Domestic Relations Law §236(B)(9)(b)(2), when the burden was lessened.

Continue Reading Appellate Court Increases College and Child Care Expense Obligations

Whether by agreement or court decree, it is common for divorced parents to be obligated to contributed to their child’s college education tuition, room and board expenses. How is that obligation computed when a child receives financial aid?

Cases have held that scholarships, grants and aid for which the student has no repayment responsibility are to be subtracted before computing the parents’ obligations. First, the total cost of attending college should be calculated. Next, a court should determine the percentage of that total cost which is covered by financial aid. That percentage is applied to the separate tuition and room and board portions of the total expense. Finally, the parents’ shares of each portion, after deducting the pro rata financial aid, is to be calculated based upon each parent’s share of of responsibility.

For example, if tuition is $12,000 and room and board is $8,000, totaling $20,000, and financial aid is $15,000, or 75% of the total college cost, the net tuition after pro rata financial aid would be $3,000. The father’s pro rata tuition obligation should then be applied to that amount to determine his contribution to tuition. Matter of Yorke v. Yorke (2011).

The question remains what forms of financial aid get subtracted. In Yorke, the Appellate Division, Second Department, held that Stafford loans should not have been subtracted. Stafford loans (Direct Subsidized Loans) are federal student loans borrowed through the Direct Loans program that offer undergraduate students a low, fixed interest rate and flexible repayment terms.

In determining the parents’ respective obligations towards the cost of college, a court should not take into account any college loans for which the student is responsible. Therefore, any loans for which the child is responsible should not have been deducted from the college costs prior to determining the father’s pro rata share of those costs. As held in the Second Department’s decision in Matter of Rashidi v. Rashidi, (2013):

A parent’s share of college expenses for a child should be based on the total cost of tuition, room and board, college fees, and books and miscellaneous expenses as estimated by the university attended by the child, less only the sum of all nonrepayable scholarships, grants, and work-study payments or credits.

In its June 7, 2017 decision in Mons Pinto v. Pinto, the Second Department made the waters a little murkier when holding that Supreme Court, Westchester County Justice Janet C. Malone correctly determined a parent’s share of the children’s college expenses, as well as the credit towards his basic child support obligation to which he was entitled, based on “the total aggregate cost of tuition and room and board, less the sum of scholarships, grants, and federal subsidized loans.”

The appellate court did not indicate whether the issue of student loans was, in fact, involved in the case. However, the language used by the court appears to be a departure from prior decisions.

Annette G. Hasapidis, of South Salem, NY, represented the father. Lawrence B. LaRaus, Buonamici & LaRaus, LLP, of White Plains, represented the mother.

Two people fighting over money / business transaction / giving & taking money / shopping / divorce / power struggle / etc.

A decision last week of the Appellate Division, Second Department, points out that the rules concerning the recovery of overpayments of child support may not always be logical, and in the end may not best benefit the children the support was intended to benefit.

The parties in McGovern v. McGovern had executed a stipulation in 2007 that was incorporated but not merged into their judgment of divorce. The stipulation required the father to pay the mother child support each month for the parties’ two children. That obligation was to continue until, as is here relevant, one of the children began attending a residential college, at which point the child support obligation would be reduced. The stipulation also required the father to pay 60% of the children’s educational expenses, but allowed him to deduct any room and board payments which he made from his child support obligation.

In February 2014, the father filed a petition with the Westchester County Family Court seeking a downward modification of his child support obligation on the ground that the older child had started college in September 2011. The father also alleged that from September 2011 to February 2014, he overpaid child support because the Support Collection Unit failed to reduce his child support payments after the oldest child started college. As a result, the father requested an overpayment credit towards his child support obligation.

Continue Reading Recoupment of Child Support Overpayments From Add-on Expenses (College); Not Future Support

stamp "Evidence"It is understandable that parents who “cannot afford” a lawyer will attempt to represent themselves in Family Court child support proceedings. Moreover, the Family Court is remarkably able to apply the law and make its determinations of issues presented by unrepresented parties. However, the fact that a party does not have a lawyer does not excuse following the rules nor presenting the proof needed by the Court to make those determinations.

Take the recent child support decision in Matter of Carol A.S. v. Mark H. There, the mother commenced a proceeding against a father in Kings County Family Court in order to establish his paternity of a college-attending daughter (under 21) and to provide support for the child. (A DNA test established was administered that established the father’s paternity.)

The decision of Judge Xavier E. Vargas went to pains to discuss the history of the case, noting the various adjournments that were granted in order to allow both parents the opportunity to gather the documentation the court needed for each party to establish his or her positions. The mother wanted the father to reimburse her for the college expenses paid for the daughter. The father claimed he regularly had been giving the daughter $600 per month by depositing that sum directly to the daughter’s account. He wanted credit for making those payments.

Continue Reading Representing Yourself In Child Support Proceedings Has Its Risks

College Fund 3Should a court reinterpret a divorce settlement agreement in light of New York’s public policy? It is one thing to void a contract provision as violative of that policy. It’s another to pretend that the contract was intended to be consistent with that policy.

Take, Monroe County Supreme Court Justice Richard A. Dollinger’s recent decision in Luken v. Luken. There, the parties’ June, 2014 separation agreement provided that the couple would jointly finance the college education for their sons. At the time of the agreement the older son had completed his first year of college; the younger son was in high school. The husband was to pay 70 percent of the college cost, the wife the remaining 30 percent, up to a combined cap of $42,000. The agreement also gave the husband a college expense credit against his child support obligation:

The father shall be entitled to receive a credit against his child support for payments for college educational expenses as set forth herein.

The agreement had obligated the father to pay child support of $33,996 annually for his two sons. The amount was calculated using the $141,000 C.S.S.A. “cap,” even though the couple’s combined family income substantially exceeded that amount (the wife estimated the husband’s income at $600,000).

Continue Reading Crediting Child Support With Payments for College Expenses

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.

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

Knight1All hail Sir Richard of Rochester! Chivalry is not dead.

Although opening his January 17, 2015 opinion in Cornell v. Cornell with “Sticks and stones will break my bones, But words will never harm me,” Monroe County Acting Supreme Court Justice Richard A. Dollinger nevertheless held that vile words to a child support-paying mother from her college-aged son were not to be tolerated.

As Justice Dollinger summarized, this case tested whether a son who engaged in vile disparagement of his mother, may strip his father of his right to claim support, including payment of college expenses. The Court held that it did.

No one should be permitted to refer to their mother in such fashion, and then, without recanting or asking for forgiveness, seek the court’s assistance to have that person support their future life. This court will not condone such actions by an unworthy son.

In his motion papers before the Court, the father sought child support from the mother and payment for college expenses. The mother argued that her obligations to pay any support – including the cost of college education – were obviated because of the child’s calculated estrangement from her. She claimed that her son described her as a “douche bag” and an “asshole,” and that this, among other behavior, has caused alienation between her and the son.

Continue Reading Do You Kiss Your Mother With That Mouth?

In determining how to allocate college expenses between parents, a court must impute income to a parent for any payment of those expenses by the family of that parent. Such was the holding of the Appellate Division, Second Department, in its July 31, 2013 decision in Kiernan v. Martin.

The facts are not made clear in the opinion. However, the father had testified he received funds from his family to pay for the children’s college expenses. These funds were not loans that the father was obligated to repay.

Putnam County Family Court Support Magistrate Rachelle Kaufman ignored these funds when allocating 67% of the college expenses for the parties’ children to the mother and 33% to the father. (The mother was also directed to pay the father $28,210.02 in arrears for college expenses.) Putnam County Family Court Judge James T. Rooney denied the mother’s objections to that order.

The Second Department reversed, holding that although the record supported the conclusion that the mother should share in the college expenses of the subject children, the Support Magistrate improvidently exercised her discretion by failing to impute additional income to the father for the money he received from his family for the children’s college expenses.

The Second Department vacated the order and remitted the matter to the Family Court for a new determination of the parties’ respective obligations to pay college expenses. That determination is to follow a report from the Support Magistrate on the amount of money the father received from his family members for the children’s college expenses.

The Second Department mandated that gifts targeted to pay for college made by the family of a parent be deemed income to that parent.

One-of-a-kind are not the type of regularly-received gifts normally imputed as income to the recipient for child support purposes. The impact, here, of the mandate is not clear.

Suppose the father makes $30,000 per year; the mother $60,000. Suppose further that the father’s parents make a gift of $30,000 towards the child’s $50,000 in expenses to attend a private college for freshman year.

Is the import of this decision to mandate that the father be deemed to earn $60,000 per year, with the remaining $20,000 of college expenses for the year (after applying the grandparents’ $30,000 gift) thus to be divided 50/50, or $10,000 to each parent? Why penalize the father? Should the $30,000 given by the father’s parents be subtracted from the expenses for the year, with the remaining $20,000 in expenses allocated 67% to the mother and 33% to the father? Or, after deeming the father to earn $60,000 per year, and allocating expenses between the parents 50/50 (or $25,000 to each parent), does the father then get to apply his parents’ $30,000 gift against his $25,000 share (and carry forward the extra $5,000 to the next year)?

Why, as the Second Department ruled, should the mother benefit from this special gift from the children’s grandparents? Was it really an abuse of discretion for Magistrate Kaufman to rule that the mother should not so benefit?

Do the parents have to go back to court the next year for a new allocation when the grandparents decide not to repeat their gift? Does a court presume that this gift is available every year? If grandparents intend to make such a gift, should they wait until a court has made its decision on allocation, and only then give funds defraying their child’s share of the grandchild’s expenses?

In Kiernan,  Hugh B. Ehrenzweig, of White Plains, represented the mother. Mitchell Lieberman, of  Lieberman & Lebovit, of Yorktown Heights, represented the father.

In a May 8, 2013 decision in Mejia v. Mejia, the Appellate Division, Second Department, modified a divorce judgment’s provisions concerning the cap on combined parental income, the disposition of the marital residence, college expenses for three children ages 14, 10 and 6, and judgment inconsistencies with the underlying decision and judgment  formalities.

After the parties separated, they each petitioned the Family Court for custody of the children. The parties consented that they share joint legal custody, and that the father have primary physical custody.

After a non-jury trial on certain financial issues, the Family Court considered the first $200,000 of combined parental income in determining child support, based upon, among other things, “the economic reality of life in Rockland County,” and a determination that the gross income of the mother was substantially less than that of the father. The mother’s pro rata share of the basic child support obligation was 37% of 29% of the first $200,00 of combined parent income was fixed at $1,789 per month in the 2011 Family Court order.

The marital residence, titled in the parties’ joint names, was awarded to the father and the children, based upon the father’s claim that there was no equity in the house. The court further concluded in its decision that the father should maintain health insurance for the children, and that the mother should pay 37% of the college expenses of the children.

The Second Department lowered to $150,000 the applied cap on combined parental income, “considering the substantial difference between the parties’ income, the fact that the [mother] has less income than the [father], and the amount of parenting time awarded to the [mother].” Calculated on that basis, the mother’s pro rata share of the child support obligation was $1,341 per month.

Continue Reading The Second Department Rules on Child Support Parental Income Cap, Transfer of the Marital Residence, and Judgment Formalities

College Fund 3.jpgIt is not uncommon for divorce settlement agreements to limit a parent’s contribution to a child’s college education to a portion of the expense to attend a campus within the State University of New York system. This is known as the “SUNY cap.”

A scholarly October, 2011 decision of New York County Supreme Court Justice Matthew F. Cooper tackled head-on the assumption that a court would not impose on a parent a share of the expenses of a private college education.

Pamela T. v. Marc B., involved the parents of 16- and 18-year old sons. The older boy, a child with “moderate emotional difficulty,” was a freshman at Syracuse University intending to study computer engineering and computer graphics. He was a graduate of a selective public Manhattan high school. The decision resolved the father’s objection to paying more than his share of a SUNY education.

A SUNY education would cost approximately $18,000 per year. Syracuse University, on the other hand, costs three times that amount, some $53,000 per year.

Both parents were lawyers, with private college and law school backgrounds. Each parent earned just over $100,000 per year. The mother had some $1,230,000 in savings and retirement accounts; the father $580,000.

Justice Cooper directed the father to bear 40% of the costs of that Syracuse University education. There is no SUNY cap mandated by New York law. The thrust of Justice Cooper’s decision was that:

the SUNY cap–to the extent that it stands for the proposition that before a parent can be compelled to contribute towards the cost of a private college there must be a showing that a child cannot receive an adequate education at a state college–is a doctrine that in many cases is harmful to the children of divorced parents, acts to discriminate against them, and is largely unworkable.

Continue Reading Divorced Parents may be Liable to Provide Children with a Private College Education