In the absence of some other compelling factor, where a noncustodial parent’s child spends 33 to 40 percent of the time with that parent, a reduction in child support from the presumptively correct formula amount is not warranted. So held Ontario County Family Court Judge Stephen D. Aronson in his October 4, 2016 decision in T.M. v. J.K.

Here, the parties were the biological parents of one child born in 2001. The mother filed a petition seeking child support. Following a hearing, the support magistrate concluded that the father’s biweekly support obligation according to the Child Support Standards Act (CSSA) formula would be $396. However, the support magistrate also found that application of the CSSA formula would be inappropriate because the child spent at least 35 to 40 percent of the time with father. This, the support magistrate held, constituted an amount of time sufficient to justify deviating from the formula, awarding the mother $270 biweekly.

The mother filed objections to the support magistrate’s order, alleging that the significant discrepancy in the parties’ financial resources and the support magistrate’s misallocation of time spent with each parent warranted imposing the formula. Specifically, she contended that the father had more disposable income, fewer expenses, and more resources. She also asserted that she has more debt, including a credit card balance (consisting of charges needed to cover her expenses) and a large school loan. It was also noted that the father paid no child support (apparently by agreement) from 2006 through 2015. (The parties did not dispute the support magistrate’s formula calculation, although Judge Aronson found the amount to be incorrect.)

Continue Reading No Child Support Formula Reduction for Father Who Has Child 33-40% of Time

Planning the budget
Planning the budget

To what extent, if any, should the courts look to step-parents and significant others to support the children of their mates? What effect should the financial arrangements between a parent and his or her new significant other (married or not married) have on the calculation of child support obligations?

Consider the November 4, 2015 decision of the Appellate Division, Second Department, in Geller v. Geller. In this case a father had petitioned for a downward modification of his $930/week child support obligation when two of his four children were emancipated.

After a hearing, Nassau County Family Court Support Magistrate Elizabeth A. Bloom determined that the father was now only required to provide support for the two youngest children, and then recalculated each parent’s pro rata share of the basic child support obligation pursuant to the Child Support Standards Act. When doing so, Magistrate Bloom also imputed income to the father for the various bills paid by the father’s employer. She determined that the father’s pro rata share of the basic child support obligation was $447 per week.

However, Magistrate Bloom deemed this amount to be “unjust or inappropriate” in light of the financial support the father was receiving from his girlfriend. Based on that, Magistrate Bloom increased the father’s formula support obligation by more than 45% to $650 per week ($33,800 per year). The father filed objections to the Support Magistrate’s order. His objections were denied by Family Court Judge Ellen R. Greenberg.

Continue Reading Child Support Calculations and the Significant Other

In its August 19, 2015 decision in Hof v. Hof, the Second Department, almost matter-of-factly, addressed a number of pendente lite and pre-nuptial agreement issues.

To begin, the Court affirmed the determination of Suffolk County Supreme Court Justice John B. Collins, that after a hearing upheld the parties’ prenuptial agreement. By that agreement, at least in part, the parties had waived interests in each other’s pensions. Contrary to the wife’s contention, that mutual waiver was not unconscionable, and was not necessarily one-sided when it was made, as both parties had accumulated approximately three years in their respective pensions at that time. Moreover, the Court stated that the husband’s threat to cancel their wedding if the agreement was not signed did not establish duress.

The Second Department modified Justice Collins’ order insofar as it deviated from the presumptive temporary maintenance formula. 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 award of temporary maintenance.

Here, the Justice Collins had downwardly deviated from the presumptive award by awarding the wife the sum of only $1,500 per month in pendente lite maintenance. While a court may deviate from the presumptive award if that presumptive award is unjust or inappropriate, the Second Department here held, however, that it was not proper to so deviate. It was an insufficient basis to deviate that the husband “was maintaining the marital residence where he was living after the wife vacated the marital residence with the children, and the fact that the wife stayed home during a portion of the marriage to take care of the children.” Such did not render the presumptive award of pendente lite maintenance unjust or inappropriate. Accordingly, the Second Department held that it must modify the award of pendente lite maintenance to provide the wife with the presumptive award of $2,549.70 per month.

On the other hand, Justice Collins was not required to apply the Child Support Standards Act to determine the award of pendente lite child support. In that regard, any perceived inequity in the temporary child support award can best be remedied by a speedy trial, at which the parties’ financial circumstances can be fully explored.

Finally, the Second increased the interim award of counsel fees from $2,500 to $20,000, the full amount of counsel fees incurred by the wife to date related to the divorce issues. The husband was the monied spouse and, thus, there was a rebuttable presumption that the wife was entitled to an award of attorneys’ fees. At the time the wife moved for her award of attorneys’ fees, the attorneys’ fees she had already incurred amounted to approximately $25,000. Domestic Relations Law §237 does not provide for an award of counsel fees in actions to enforce or rescind prenuptial agreements, and approximately $5,000 of the $25,000 in fees that she actually incurred were attributable to challenging the prenuptial agreement. Therefore, at this juncture, the Second Department held the wife should be awarded interim attorneys’ fees in the sum of $20,000, rather than only $2,500.

Arnold B. Firestone, of Firestone & Breud, PLLC, of Commack, represented the wife. C. Donald Shlimbaum, of Shlimbaum & Shlimbaum, of Central Islip, represented the husband.

Calculator formulaOn June 24, 2015, the New York State Senate passed Bill A7645-2015 relating to the duration and amount of temporary and post-divorce spousal maintenance. The bill passed the State Assembly on June 15th. It awaits approval by Governor Cuomo.

The law’s formulas apply to actions commenced on or after the 120th day after they become law (except for the temporary maintenance formulas which apply to actions commenced on or after the 30th day after they become law). The new law may not be used as a basis to change existing orders and agreements.

The law will undoubtedly be the subject of numerous articles and legal seminars. Years of decisions will be forthcoming that particularly focus on matters of discretion, just as they followed the enactment of the Child Support Standards Act in 1989.

Before getting to the new formulas, the law eliminates a major thorn in side of the matrimonial bench and bar: When equitably distributing the assets of the parties, the court is no longer to consider as a marital asset the value of a spouse’s enhanced earning capacity arising from a license, degree, celebrity goodwill, or career enhancement (however, it may be condidered when making other distributive awards).

As to maintenance, the following highlights may be noted, many of which are contained in the Sponsor’s Memo:

Continue Reading Legislature Passes Spousal Maintenance (Alimony) Formula

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.

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.

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.

Is a wife entitled to formula temporary maintenance in a divorce action, merely because she is the less-monied spouse? No, says New York County Supreme Court Justice Matthew F. Cooper in his October 22, 2014 decision in Joseph M. v. Lauren J.

In this matrimonial action, the wife sought temporary custody of the parties’ child, as well as an order awarding her pendente lite maintenance, child support, and counsel fees. Although the custody applications were premature, the financial issues were ripe for determination.

In many ways, this case highlights the tension that exists when imposing a statutorily prescribed formula for awarding temporary maintenance on a determination that has traditionally been left to the sound discretion of a court.

The parties were married in 1997 and had one child, a daughter, born in 2009. The couple separated eight months after the child’s birth when, in May 2010, the wife left the marital residence in Yonkers to live with a man with whom she had been involved since before the pregnancy. The wife continued to reside with this man and was largely supported by him for almost four years. They recently stopped living together because their church objected to them continuing to cohabit while she was still married to the husband. As a result, the wife had been living for the last few months in a hostel in upper Manhattan.

Continue Reading Temporary Maintenance All But Denied to Wife Able to Work and Who Had Lived With Another Man

The required C.S.S.A. recitation in an oral open-court stipulation by which the parties explain why they have agreed to a child support obligation varying from the presumptive C.S.S.A. formula may not have to be as “precise” as that required in a written stipulation. Such appears to be the holding of the Appellate Division, Second Department, in its January 22, 2014 decision in Rockitter v. Rockitter.

On August 9, 2010, the parties had entered two stipulations to settle their divorce action. A written stipulation covered the parties’ joint custody of their two daughters. The second stipulation was oral, made on the record in open court and concerned child support and equitable distribution. Both stipulations were subsequently incorporated, but not merged, into the parties’ judgment of divorce.

Approximately 18 months later, the ex-wife commenced this action seeking to vacate the child support provisions of the oral support stipulation and the judgment of divorce. The ex-wife alleged that the support stipulation failed to comply the Child Support Standards Act because the parties did not make the required recitation of the reasons they chose to deviate from C.S.S.A. guidelines. Nassau County Supreme Court Justice Norman Janowitz granted the ex-husband’s motion to dismiss the complaint. The Second Department affirmed.

The C.S.S.A. requires that any agreement varying its presumptive child support formula contain specific recitals:

  • (1) that the parties have been made aware of the C.S.S.A.;
  • (2) that they are aware that the guidelines would result in the calculation of the presumptively correct amount of support;
  • (3) that in the event the agreement deviates from the guidelines, it must recite the presumptively correct amount of support that would have been fixed pursuant thereto; and
  • (4) the reason for the deviation.

Continue Reading C.S.S.A. Recitiation Requirements Relaxed for In-Court Child Support Sipulation

Three Second Department decisions within eight days this month reveal the discretion of the trial court when income is not apparent (no pun intended) on a determination of a parent’s basic child support obligation.

In Fein v. Fein, the Appellate Division, Second Department, affirmed the determination of Westchester County Supreme Court Justice Bruce E. Tolbert to impute $125,000.00 as the annual income of the father, and $65,000.00 as the annual income of the mother, but then to cap the non-custodial husband’s support obligation on his share (65.79%) of the $130,000.00 Child Support Standards Act (C.S.S.A.) cap in effect when the 2011 order was made. The court awarded $450.00 per week in child support and also awarded the wife $346.15 per week ($18,000.00 per year) for 3 years as maintenance.

In Fein, the parties had three children (29%). The husband had worked as a trader in the financial industry before losing his job in late 2009. The mother stayed at home with the children. The Second Department stated that it was proper for Justice Tolbert to have imputed to the husband an annual income of $125,000.00 for the purpose of calculating child support, given the plaintiff’s current employment situation, his future earning capacity, and the evidence presented relating to additional streams of income.

[The actual calculation, though, is not discussed. If the combined parental income was imputed to be $190,000.00, the husband’s share would be 65.79% of the total. For the three children, using the formula, the father’s base obligation would be 65.79% of 29% of $130,000.00, or $24,802.83 per year ($476.98 per week). Alternatively, and deducting the $18,000.00 annual maintenance from the $130,000.00 cap, would leave $112,000.00 in parental income. The father’s support obligation based on this sum would be $410.31 per week ($21,336.11 per year). Perhaps the difference was based on attributed FICA and Medicare taxes, or other adjustments.]

More difficult to explain is the January 15, 2014 decision in Best v. Hinds. There the Second Department affirmed the order of Kings County Family Court Alan Beckoff (who, in turn, denied the father’s objections to the order of Support Magistrate John M. Fasone) that granted a father’s downward modification of his child support obligation, but only to $738.00 per month. When doing so, the Family Court imputed an annual income to the father in the sum of $35,000.00.

$738.00 per month for the one child to benefit from this order, would gross up to $52,094.12 per year as the income upon which to apply the C.S.S.A. formula ($738.00 x 12 ÷ 17%). The failure to limit the child support award to the formula application to his imputed income of $35,000.00 per year is more noteworthy, as the father also had custody of three other children. Although the Second Department held that Support Magistrate Fasone’s failure to consider this fact was not properly preserved for appellate review, the appellate court did state that such was not an improvident exercise of discretion. In determining whether the full amount of support under the standard guideline would be unjust or inappropriate, a court may consider the needs of the children of the noncustodial parent who are not the subject of the support proceeding and for whom the noncustodial parent is providing support.

However, the court may only take this factor into consideration where the resources available to support such children are less than the resources available to support the children who are the subject of the proceeding.

Such a finding was not supported by the evidence.

[The May 31, 2012 blog post reported on the Second Department’s decision in Bershadskaya v. Nemirovsky, which reversed a determination of Magistrate Fasone because he did not impute income to a father received in fringe benefits.]

Finally, in the January 8, 2014 decision in Speranza v. Speranza, the Second Department upheld the order of Dutchess County Family Court Judge Denise M. Watson  (who, in turn, denied the father’s objections to the order of Support Magistrate Rachelle Kaufman) that had based a support award on income of the father imputed to be the income represented by the father some five years earlier.

The earlier representation of the father’s annual income of $61,467.00 formed the basis of a November 30, 2007 Family Court support order had been issued on the consent of the parties. In a December, 2010 stipulation of settlement that was incorporated, but not merged into the parents’ 2011 judgment of divorce, the parties agreed that the father’s obligation to pay child support would be suspended for 15 months, after which his child support obligation would resume and be calculated pursuant to the C.S.S.A.

When the mother petitioned the Family Court to so redetermine the father’s support obligation, the father failed to make any financial disclosure. To resolve the matter the Magistrate used the 2007 income figure. That was upheld by the Family Court Judge and, here, the Second Department.

Where a respondent in a support proceeding fails, without good cause, to comply with the compulsory financial disclosure . . . , ‘the court on its own motion or on application shall grant the relief demanded in the petition or shall order that, for purposes of the support proceeding, the respondent shall be precluded from offering evidence as to respondent’s financial ability to pay support’ . . . .

Under the circumstances it was a  provident exercise of discretion to direct that the father pay child support based upon an annual income of $61,467.00.

We don’t know whether the father benefited from this or not. What is clear is that when basing support on imputed income, the trial court has a large degree of flexibility and discretion, both in determining the amount of income imputed and then in how to apply the C.S.S.A.

In FeinEvan Wiederkehr of DelBello Donnellan Weingarten Wise & Wiederkehr, LLP, of White
Plains, represented the mother. Bryce R. Levine  of Jeffrey S. Schecter & Associates, P.C., of Garden City, represented the father.

In Best, Alan S. Cabelly of Cabelly & Calderon,of Jamaica, represented the father.