Child Support (C.S.S.A.)

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In his June 13th decision in E.J. v. M.J., Nassau County Supreme Court Justice Edmund M. Dane resolved the complex financial issues arising when a divorce action is commenced after a child begins attending a private university, but before the child turns 21 or graduates. The fact pattern presents a blend of Equitable Distribution and child support add-on issues.

Here, the parties were married in 1997 and had two children born in 2001: a son who by the time of the decision had turned 21 and had just graduated from Quinnipiac College and a daughter with developmental disabilities for whom the parties had agreed to adult dependent support.

The wife commenced this divorce action in May 2021. The parties entered a Settlement Agreement resolving most of their issues. However, issues of their son’s college education expenses and counsel fees remained to be decided upon written submissions.

The wife alleged that in the year prior to commencement of the action, the husband signed a series of Parent Plus loans for their son, totaling approximately $141,000. She argued that the Court should consider the husband’s financial ability to contribute to those expenses, as well as the academic backgrounds of the parties and the best interests of the child. The wife further contended that if she were to be obligated to contribute to the Parent Plus loans, her obligation should be capped at a SUNY rate. The wife maintained that there was no prior agreement between the parties regarding the payment of college expenses for their child.Continue Reading Apportioning a Child’s Pre- and Post-Divorce Action Commencement Private College Expenses

In its decision this month in Vaysburd v. Vaysburd, the Appellate Division Second Department reminded us that once a parenting stipulation or order is entered, child support will not be affected until the stipulation or order is modified. This is true, even if the support award is made in the same divorce action in…

What is the significance in a divorce settlement agreement of the parents’ decision to apply the child support formula to all of the parents’ income in excess of the statutory “cap?” How will such an agreement affect a subsequent modification proceeding?

Such was the issue addressed in last week’s decision of the Appellate Division, Second Department, in Matter of Monaco v. Monaco, 2023 NY Slip Op 01091, 2023 N.Y. App. Div. LEXIS 1093, 2023 WL 2290584 (2nd Dept. 2023).

The parties were married in 1996 and have three children. In 2013, the parties executed a stipulation of settlement that was incorporated but not merged into their judgment of divorce. The agreement fixed the father’s biweekly child support obligation at $1,618.02. In doing so, the parties had agreed to apply the 29% Child Support Standards Act (C.S.S.A.) statutory percentage to their total combined parental income of $185,980.

In September 2020, the father filed a petition seeking a downward modification and the mother filed a petition for an upward modification. By order dated December 3, 2021, Support Magistrate Darlene Jorif-Mangane granted the father’s petition. The Magistrate found that the parties’ combined parental income was $251,708.46 and exceeded the then statutory cap of $154,000.00. The father’s child support obligation on the combined parental income up to the statutory cap was the sum of $1,220.00 biweekly for 3 children, and $1,051.00 biweekly for 2 children [1 child having been emancipated prior to the hearing].Continue Reading The effect of divorce settlement agreements on child support modification proceedings

Man using calculator

Child support overpayments, resulting from the retroactive application of a reduced child support award, may be recouped against future add-on expenses of the children. So held the Appellate Division, First Department, in its March 31, 2022 decision in Castelloe v. Fong.

That decision affirmed an Order of New York County Supreme Court Justice Michael L. Katz, which in turn confirmed the award of a Special Referee.

The appellate court upheld the Referee’s decision to impute $250,000.00 in annual income to the father. The Court also upheld the Referee’s decision to use a $250,000.00 cap to calculate the father’s child support obligation of $3,333.33 per month ($40,000.00 per year), finding that it was sufficient to meet the children’s “actual needs” to live an “appropriate lifestyle.” The trial evidence reflected the parties’ comfortable upper-middle-class lifestyle and that both parties had significant financial resources to support the use of a $250,000 cap.Continue Reading Overpayment Of Child Support May Offset Future Add-on Expenses

It is not rare, and may be commendable, to resolve child support obligations based upon anticipated future circumstances: an expected job, obtaining a degree or license, etc. However, when doing so, care must be taken to anticipate not meeting those expectations. When is relief available? The issue is complicated if the parties “opt out” of the statutory ability to seek a modification upon a 15% change in income or three years from the support order.

Consider the 2021 decision of the First Department in Matter of Solomon M. v. Adelaide M., 192 A.D.3d 424, 142 N.Y.S.3d 542. There, at the time the parties entered their child support stipulation, the husband was unemployed and had no income. When the husband later obtained a job, the husband complained his take home pay was inadequate to cover his agree-upon support obligations.

The husband petitioned the Family Court for a downward modification. Bronx County Support Magistrate Shira Atzmon denied the husband’s petition. The Magistrate noted that the husband’s financial situation and potential earning capabilities had actually improved by the time of his petition as compared with the time of the stipulation he sought to modify. By the time of his petition, the husband had earned an MBA and was earning approximately $30,000 per year. Bronx County Family Court Judge Phaedra Perry denied the husband’s objections to the Magistrate’s order. The Appellate Division, First Department, affirmed.Continue Reading Anticipating Future Finances when Agreeing to Support Obligations

It is common for child support to continue to be paid while a child is away at college. A child often will return  home for perhaps four months of the year. What happens when the student just stays there year round?

Often in divorce stipulations of settlement, the parties will define when a child will be deemed emancipated terminating the child support obligation. One of those occasions is often a permanent change of residence of the child away from the residence of the deemed custodial parent.

It is common for such a change of residence to exclude one occasioned by a child’s attending college away from home. Such reflects that the custodial parent must have shelter available; and pay for food and other expenses while the child is home. Often, expenses for clothing, entertainment, and other items are paid year round. Sometimes a credit is given against the periodic support obligation for all or some fraction of the room and board expenses paid by child support payor.

What happens when a child simply does not return home while attending college? That was the issue presented to Nassau County Family Court Support Magistrate Sondra Toscano in Matter of Anthony C. v. Alison C., 2021 N.Y.Misc. Lexis 3115.Continue Reading Terminating Child Support While Child Away at College

The calculation of a retroactive periodic child support award to the wife and offsetting that award with credits for a retroactive award to the husband for the wife’s unpaid share of add-on expenses was the subject of the September 30, 2020 decision of the Appellate Division, Second Department in Levi v. Levi.

The parties were married in 2003 and had two children. On May 7, 2014, the husband commenced this action for a divorce. Pursuant to a pendente lite order dated September 3, 2014, the husband was directed to pay the wife $500 per month for temporary spousal maintenance, $750 per month for temporary child support, 100% of unreimbursed medical, dental, and eyeglasses expenses for the wife and the children, and to pay the expenses for certain therapists and tutors for the children.

At trial, it was established that the husband was employed full-time by the MTA, then earning a salary of $ 99,000 annually. The wife, a licensed optician, worked part-time at a neurovisual practice, earning $20 per hour, for an average of 25 hours per week.

In a February 8, 2017 decision after trial, Supreme Court Nassau County Justice Robert A. Bruno determined that the wife’s annual earnings of $26,000 represented 21% of the parties’ combined income. The trial court calculated the husband’s child support obligation under the Child Support Standards Act at $1,899.91 monthly, awarding that sum retroactive to the date of the wife’s application for pendente lite support.

Child support arrears were calculated to be $66,496.85, using the husband’s income at the time of trial to base the award retroactive to mid-2014, some 2½ years earlier when the husband was earning less. The husband appealed.Continue Reading Retroactive Child Support Awards: Heads I Win, Tails You Lose?

In its June, 2019 decision in English v. Smith, the Second Department reminds to properly memorialize any agreed-upon understandings or changes to a divorce settlement agreement.

The parties’ Separation Agreement was incorporated but not merged into their 2015 judgment of divorce. The father was to pay the mother child support. In addition, the parents would share equally in the costs of their child’s undergraduate and graduate education, extracurricular activities, and uncovered medical, dental, orthodontic, eye care, and mental health treatment.

The agreement also provided that neither the agreement nor any provisions thereof could be modified or waived except by a writing “duly subscribed and acknowledged by both parties with the same formality as” the separation agreement itself.

The parties’ child began attending University College in Dublin, Ireland, on a full tuition scholarship in 2015. The father stopped making child support payments to the mother in May 2015. The father contended that the parties had agreed that they would equally share in paying the child’s living expenses in lieu of the father paying child support to the mother.Continue Reading Modifying Support? Do it Right. Claimed Off-Sets Denied

If you delay going to court after an event that changes rights and obligations, you do so at your peril.

In Fortgang v. Fortgang, the parties were divorced in May 2011. Under their stipulation of settlement, the parties agreed that the husband would pay $2,600 per month in basic child support for the parties’ two children. The stipulation provided that this child support obligation would decrease when the parties’ older child became emancipated, but did not provide the reduced amount.

In December 2013, the older child became emancipated, but the husband continued to pay the full child support amount. In November 2015, the parties’ younger child became emancipated, but the husband continued to pay child support for several months thereafter.

In December 2016, in response to motion by the wife, the husband cross-moved, for the first time, to recoup child support overpayments. Suffolk County Supreme Court Justice David T. Reilly granted the husband’s cross motion, and awarded him a money judgment against the wife for $30,422.32 in overpaid child support.Continue Reading Recouping Overpaid Child Support: Two Lessons