For what expenses will a support payor (here, the husband) receive credit against the retroactive support award made incident to the final divorce determination?

The Second Department clarified the rules in its May 14, 2014 decision in McKay v. Groesbeck.

Six years earlier (!), on a prior appeal (Groesbeck v. Groesbeck, 51 A.D.3d 722, 858 N.Y.S.2d 707 [2008]), the Second Department modified the portions of the parties’ judgment of divorce to make the child support and maintenance awards retroactive to the date the Summons (with notice) requesting such relief was filed. The Court sent the case back to the Supreme Court to calculate the amount of retroactive child support and maintenance, less any amount of maintenance and child support already paid.

Rockland County Supreme Court Acting Justice Victor J. Alfieri, Jr., determined that the husband was not entitled to any credits for any voluntary payments (not made pursuant to a court order). Justice Alfieri directed the husband to pay $28,500 for maintenance arrears and $37,902 for child support arrears.

The Second Department here modified that determination. Once again, the appellate court noted a party’s maintenance and child support obligations are retroactive to the date of the application therefor; here, the Summons with Notice. Any retroactive award must take into account any amount of temporary maintenance or child support which has been paid.

Generally, voluntary payments made by a parent for the benefit of his or her children may not be credited against retroactive awards. Further, a party is not entitled to a credit for payments made to satisfy that party’s own legal obligations that were not made pursuant to a pendente lite order of support.

However, a party is entitled to a credit for payments made to satisfy the other spouse’s legal obligations. Here, the husband should have received a credit towards arrears for any payments he made toward the wife’s car payments and insurance. The husband also should have received credit for one half of the payments he made toward the mortgage and carrying charges on the marital home, as those payments were made to satisfy the plaintiff’s legal obligations.

The matter was once again sent back to Supreme Court for calculations.

Counseling a party as to what payments to make and how, and whether or not to seek a temporary order concerning such payments, is difficult. It is not an exact science, and often involves a balancing of interests and judgment calls.

Randy J. Perlmutter, of Kantrowitz, Goldhamer & Graifman, P.C., of Chestnut Ridge, represented the husband. Julia Masch, of Masch, Coffey & Associates, LLP, of New City, represented the wife.

The emancipation of a child does not automatically result in the downward modification of an unallocated order of child support. Rather, the support payor has the burden of proving that the existing  amount of unallocated child support is excessive based on the needs of the remaining unemancipated children.

Such was the holding of the Appellate Division, Second Department, in its May, 2013 decision in Lamassa v. Lamassa.

In this case, the parties had entered into a stipulation of settlement of their divorce action that was read into the record. Then when the parties eldest child turned 18, the father unilaterally, and without a court order, reduced his child support payments. He then further reduced the amount of the support payments each time one of the parties’ remaining three children reached the age of 21 years.

Only then did the father move, in effect, to reduce the amount of child support payments and to cancel child support arrears accruing before that application.

At the hearing before Supreme Court, Richmond County Court Attorney/Referee Fay M. de Grimston, the father testified that as each of the children reached 21 years of age, he reduced the amount of support payments. He claimed that the mother had accepted the checks from him without objecting orally or in writing. The mother denied that she agreed to a reduction of the support payments. She claimed that she did not receive any checks directly from the father, but rather from the children. She asked the children to tell the father that the amount was wrong.

The mother also testified about an (unspecified) attempt to enforce the child support obligation. In addition, three of the parties’ children also testified and stated that the support checks were given to them to pass on to their mother; and that they never saw the father give checks directly to the mother (two of the children were still living with the mother at the time of the hearing).

The Referee concluded that the father was not entitled to a reduction in the amount of the support payments, or to cancellation of support arrears. The father had unilaterally reduced his support payments without court order, but had not provided credible proof of an oral agreement to modify the support obligation.

Affirming the determination that the father was not entitled to retroactive relief, the Second Department held that the father was not entitled to a reduction of the amount of child support payments, or a cancellation of child support arrears:

When child support has been ordered for more than one child, the emancipation of the oldest child does not automatically reduce the amount of support owed under an order of support for multiple children. In addition, a party seeking a downward modification of an unallocated order of child support based on the emancipation of one of the children has the burden of proving that the amount of unallocated child support is excessive based on the needs of the remaining children.

Continue Reading Emancipation Of One Child Does Not Automatically Result in a Downward Modification of Unallocated Child Support