Among 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.