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

Using the state’s Child Support Enforcement Services can have unintended results. Having support payments made through a Support Collection Unit triggers a cost-of-living adjustment procedure that may result in a significant change to the court-ordered support obligations to which parties had agreed.

Consider the September 26, 2018 decision of the Appellate Division, Second Department, in Murray v. Murray. There, the former spouses in their 2001 surviving divorce settlement agreement had agreed to share joint custody of their children, with the mother having physical custody.

The parties had opted out of the basic child support obligations of the Child Support Standards Act (C.S.S.A.), with the father agreeing to pay a certain sum for child support from August 1, 2001, through January 31, 2006. The parties also executed a rider to their stipulation, in which they agreed that beginning on February 1, 2006, until both children were emancipated, the father would pay child support to the mother based on the C.S.S.A., but using the parties’ total combined income for the year 2005.

In an 2009 order, the Family Court, upon the parties’ consent, directed the father to pay $740.56 per week in child support for both children through the Support Collection Unit (the SCU).

In March 2017, the SCU notified the parties of the presumptive cost-of-living adjustment (COLA) to the father’s child support obligation authorized by Family Court Act §413-a. That would increase the father’s weekly child support obligation to $822.00.

The mother filed an objection to the cost of living adjustment pursuant to Family Court Act §413-a(3), requiring that a hearing be held for a redetermination under the C.S.S.A. After that hearing, Suffolk County Support Magistrate Aletha V. Fields, in effect, vacated the COLA increase. At the time, the subject child was 20 years old and entering her third year of college. Upon recalculating the amount of child support, Magistrate Fields fixed the father’s child support obligation at $360.00 per week. The Support Magistrate found that although the parties’ combined parental income was $371,697.08, the mother failed to set forth a basis upon which to apply the statutory child support percentage to any income above the statutory cap of $143,000.00.

The mother filed objections to the Support Magistrate’s order. However, Family Court Judge Anthony S. Senft, Jr., denied the mother’s objections. The mother appealed.

Continue Reading Child Support Payments Through Support Collection Units May Result in Unanticipated Changes

The Child Support Standards Act authorizes parents to agree to a child support obligation that deviates from the presumptive formula provided in that statute. However, if they are going to deviate from the formula, the parents must state what the obligation would have been if the formula were to be applied, and the reasons why the parties have agreed to deviate.

In its September 26, 2018 decision in Fasano v. Fasano, the Appellate Division, Second Department, held that if one of those reasons no longer applies, such is a “substantial change in circumstances” warranting a new child support determination.

The parties were married in 1993 and have two children together. In October, 2012, the parties entered into a stipulation of settlement of a prior divorce action after which that action was discontinued.

That stipulation provided that although the husband’s monthly child support obligation using the C.S.S.A. calculation would be $1,994.45 on the first $130,000.00 of combined parental income (then, the “cap”) and $2,575.61 on the total combined parental income, the parties had agreed that the husband’s monthly child support obligation would be $1,500.00. The stipulation also provided that there would be no “add-ons” or “additional health costs” added to these child support payments, even though the C.S.S.A. generally provides that each parent’s share of unreimbursed health care expenses is to be prorated in the same proportion as each parent’s income is to the combined parental income.

The stipulation contained an explanation that the deviation from the C.S.S.A. calculation was necessary “to allow the [husband] to retain the marital residence as a place for the children to be with him when they are together” and had “been agreed by the parties to be in the best interests of the children to provide them continuity and stability in their living and educational environments.”

Continue Reading A Child Support Redetermination Is Warranted If a Stated Reason Parties Deviated From CSSA No Longer Applies

May a parent be directed to maintain life insurance in a Family Court support proceeding? Do an aunt and uncle awarded primary residential and, with the father, joint legal custody of his children, share responsibility for the children’s health and education expenses? Such were the questions addressed by the Appellate Division, Second Department, in its September 12, 2018 decision in Lozaldo v. Cristando.

Following the death of the children’s mother, the maternal aunt and uncle were awarded residential custody of the children and shared joint legal custody with the father. The aunt and uncle commenced this proceeding for child support from the father. After a hearing, Nassau County Family Court Support Magistrate Patricia Bannon entered a support order which, inter alia, required the father to pay 100% of the children’s unreimbursed medical and educational expenses, and to maintain a life insurance policy in the sum of $1,000,000, designating the children as irrevocable primary beneficiaries. The father objected to these provisions of the order of support. Family Court Judge Conrad D. Singer denied his objections. The father appealed.

The Second Department agreed with requiring the father to pay 100% of the children’s medical and educational expenses. There was no basis to find the maternal aunt and uncle liable for a portion of such expenses.

Continue Reading Family Court-Mandated Life Insurance | Non-Parent Liability for Health and Education Expenses

 

JengaOn June 12, 2018, the Court of Appeals in a 5-2 decision, affirmed the ruling discussed below.

It is common in agreements, and often the case in judicial decisions, for the parent paying periodic child support to receive a credit against those payments for college room and board expenses paid by that parent. May parties agree that the credit exceed the amount allocated by the parties to the support of the particular child attending college? No, (probably) said the Appellate Division, First Department, in its April 6, 2017 decision in Keller-Goldman v. Goldman.

The parties entered into a Stipulation of Settlement and Agreement that resolved all issues surrounding their separation. As may be relevant to the court’s determination, although the parties had four unemancipated children, the agreement only provided for support for the three children for whom the wife was deemed the custodial parent (the parties were to share equal time with these three). The husband retained custody of the fourth child, but agreed to receive no support for him from the mother. The opinion noted that had the parties not negotiated the issue of child support, the mother stood to collect $5,000 per month in child support payments, pursuant to the Child Support Standards Act, a fact acknowledged by the agreement. Instead, she agreed to monthly child support payments of $2,500.

Paragraph 10.3 of the parties’ agreement provided for a graduated reduction in the father’s child support payments upon the emancipation of each of the three children. Upon the first emancipation his monthly payment would be reduced by $350 to $2,150 per month; and upon the second emancipation the payment would be reduced to $1,462 per month.

The agreement provide for a room and board credit at paragraph 10.4, immediately following the support reduction schedule:

During the period in which a Child is attending a college and residing away from the residences of the parties and [the father] is contributing towards the room and board expenses of that Child, [the father] shall be entitled to a credit against his child support obligations in an amount equal to the amount [the father] is paying for that Child’s room and board. The credit shall be allocated in equal monthly installments against [the father’s] child support payments.

Continue Reading Uncapped Room and Board Credit Violates Public Policy

Are verbal promises and statements of intention relating to child support enforceable? It is a basic tenet of family law that to be enforceable, agreements between parents must be in writing and acknowledged before a notary; except, it appears, when they don’t have to be.

In Manfrede v. Harris, Nassau County Family Court Support Magistrate Patricia Bannon, S.M., directed a father to pay 61% of the out-of-pocket private college expenses of the parties’ child. Family Court Judge Thomas Rademaker denied the objections of the father to that order. The Appellate Division, Second Department, in its June 27, 2018 decision, affirmed.

The Court noted that a parent may be directed to contribute to a child’s private college education, even in the absence of special circumstances or a voluntary agreement of the parties, as long as the court’s discretion is not improvidently exercised. In determining whether to include such educational expenses as part of the parent’s child support obligation, the court must consider the circumstances of the case, including the circumstances of the respective parties, the best interests of the child, and the requirements of justice . Here, it was not an improvident exercise of discretion for the Support Magistrate to direct the father to pay 61% of the child’s out-of-pocket college expenses, which the Support Magistrate calculated to be his pro rata share based on the parties’ incomes.

Furthermore, it was not an improvident exercise of discretion for the Support Magistrate to decline to impose a SUNY cap in calculating the father’s obligation for the child’s out-of-pocket college expenses. The father had promised to help the child with the cost of attending private college, and the child relied upon that promise in choosing the private college the child was attending.

The Court did not discuss the issue of a room and board credit against the father’s periodic child support obligation. We were not told to what extent the child’s expenses were reduced by grants and scholarships. Student loans were not discussed. The parties’ incomes and net worth were not revealed.

The lesson: when it comes to aiding a child, the rules are very flexible. Here, there was no need for a written promise; no need for an acknowledged agreement; and no need for a Child Support Standards Act recitation.

Is a child who leaves one parent’s residence to live with the other “constructively emancipated,” depriving the new residential parent of child support relief? In its May 30, 2018 decision in Root v. Root, the Appellate Division, Second Department, said no.

The parties were married in 1992, and have two children together. The parties were divorced in 2012, with the judgment incorporating, but not merging the parties’ stipulation of settlement. The parties had agreed to joint custody of their children, with residential custody to the mother. Pursuant to the judgment, the father was obligated to pay the mother child support and a pro rata share of certain add-on expenses.

In August 2015, the father filed a petition to modify his support obligation. The father argued that the parties’ son had moved in with him and, therefore, he was entitled to an offset against his child support obligation for the amount he was expending to support that child. The mother opposed the petition, arguing that the father was not entitled to an offset because the son was constructively emancipated.

After a hearing, Westchester County Family Court Support Magistrate Rosa Cabanillas-Thompson issued an order in which she found that the child was constructively emancipated, and thus that the father was not entitled to an offset against his child support obligation for the amount he was expending to support that child. Family Court Judge Nilda Morales Horowitz denied the father’s objections to the Support Magistrate’s order, and the father appealed.

The Second Department reversed: the Support Magistrate should not have found that the son was constructively emancipated and that the father was not entitled to an offset against his child support obligation for the amount he was expending to support that child.

The appellate court noted that a child may be deemed constructively emancipated if, without cause, the child withdraws from parental supervision and control. Thus, a child of employable age and in full possession of his or her faculties who voluntarily and without cause abandons his or her home, against the will of the parents and for the purpose of avoiding parental control, forfeits the right to demand support.

Here, however, the mother failed to sustain her burden of establishing that the parties’ son was constructively emancipated. The son’s move from one parent’s home to the other parent’s home did not constitute constructive emancipation, as [the son] was neither self-supporting nor free from parental control.

Accordingly, the matter was remitted to the Family Court, Westchester County, for a recalculation of the father’s child support obligation.

Notably absent from the decision was any reference to what the parties’ Stipulation of Settlement did nor did not provide in the event of a change of residence of a child. Was the change of residence deemed an emancipation event? Did the Stipulation contemplate the event? Also, why would the relief be an offset based upon what the father was “expending to support that child?” Why would there not be a redermination based upon offsetting C.S.S.A. presumptive formula awards?

Daniel L. Pagano, of Yorktown Heights, represented the father; the mother represented herself.

What is the effect of a divorce settlement stipulation provision, incorporated in the judgment of divorce, that calls for a specified reduction in child support upon the emancipation of one of the children of the parties?

The fact pattern is almost routine. For example, say the parties have three children, 14, 17 and 19. Their divorce settlement tracks the C.S.S.A. Upon the first emancipation (presumably when the 19-year old turns 21, or, perhaps graduates college according to the definition of emancipation in the agreement), the stipulation provides that the child support obligation will go from $2,900 per month to $2,500 per month (tracking the reduction in the formula obligation from 29% for three children to 25% for two children). Assume the full stipulation is incorporated by reference into the parties’ divorce judgment.

Continuing the example, assume that upon the first emancipation, the child support payor in fact reduces his/her payment from $2900 to $2500, but does not have that reduction established by a new court order. A year later, the support recipient goes into court to seek 12 months of $400/per/month arrears. What happens?

Consider last month’s decision of the Appellate Division, Second Department, in Beckmann v. Bedckmann. There, the parties’ 2012 divorce judgment incorporated, but did not merge with, their 2011 stipulation of settlement. The parties had agreed that the husband would pay $700 semi-monthly in basic child support for their two children. In April 2013, the parties’ daughter became emancipated under the terms of the stipulation, and shortly thereafter, the husband reduced his child support payments from $700 to $476 semi-monthly [I am going to dangerously assume that an agreement that defined emancipation would also provide what was to happen on emancipation].

Continue Reading Divorce Settlements that Provide for Reductions in Child Support upon Emancipation

In its March 21, 2018 decision in Elkins v. Mizrahi, the Appellate Division, Second Department, struck a credit issued at the time a father’s new child support obligation was established. That determination tacitly affirmed the new obligation, after a lower court found that a prior waiver of future child support, to which both parties had stipulated, violated public policy. However, the same lower court had previously discharged prior arrears and terminated the father’s support obligation in the order entered that had incorporated that prior stipulation of the parties.

The parties, who have three children together, were divorced in March 2008. In 2014, the parties entered into a stipulation whereby they agreed, inter alia, that the father would pay the mother a lump sum of $50,000.00 in full satisfaction of his accrued child support arrears, which, at that time, exceeded $70,000.00, and that the father’s child support obligation would be terminated going forward. The mother received the $50,000.00 payment on November 21, 2014.

In an order dated January 29, 2015, Nassau County Family Court Judge Ellen R. Greenberg gave effect to the stipulation, terminated the father’s future child support obligation, and directed that the father’s remaining child support arrears of $21,385.46 be deemed satisfied.

Continue Reading Waiver of Future Child Support Voided, But Miscalculated Credit Struck

When negotiating a divorce settlement agreement, the parties should agree on whether or not all child support-related rights and obligations must be redetermined in the event the periodic basic child support obligation is modified.

Take the recent Appellate Division, Second Department, decision in Walsh v. Walsh. There the parties’ settlement agreement was incorporated, but not merged into their 2014 judgment of divorce. Under that agreement, the father was to pay $500 per month in child support.

After the parties divorced, the father began collecting Social Security benefits in addition to his salary, which caused his income to increase by more than 15%. In their agreement, the parties did not opt out of allowing the court to modify the support order, without requiring a party to allege or demonstrate a substantial change in circumstances, where either party’s gross income changed by 15% or more since the order was entered or modified. The mother petitioned for an upward modification of the father’s child support obligation.

Family Court Suffolk County Support Magistrate Kathryn L. Coward granted the upward modification on the basis of the father’s increased income. Calculating the father’s child support obligation under the Child Support Standards Act, the Magistrate awarded the mother $2,074 per month in child support.

The father objected to the Support Magistrate’s order. Family Court Judge Matthew G. Hughes denied the father’s objections. The father appealed. The Second Department affirmed.

Continue Reading Are The Various Types of Child Support Benefits Interrelated?

It is common for the parents of young children when entering a divorce settlement agreement to defer until the children approach college age the determination of the parents’ obligations to contribute. The language chosen to express that deferral may be significant.

The recent decision of the Appellate Division, Second Department, in Conroy v. Hacker, lets us know the agreement language is significant. But we are left asking what would have happened without it.

In Conroy, the parties were married in 1991 and were the parents of two children. Their 1999 divorce judgment incorporated, but did not merge, a 1998 separation agreement. As relevant here, the separation agreement stated:

The parties are not making any specific provisions for the payment of college expenses which may be incurred on behalf of the infant children because of the tender age of said children as of the date of this Agreement. The parties do, however, acknowledge an obligation on each of their parts to contribute to the children’s future college expenses in accordance with their financial abilities at that time.

Continue Reading Enforcing the Divorce Settlement Agreement To Defer Fixing College Obligations