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

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

Two recent decisions of the Appellate Division, Second Department, have upheld maintaining a father’s child support obligations despite alleged changes to the nature of the relationship with the child.

in Lovaglio v. Wagner, the father contended that the parties’ then 20-year-old daughter had moved in with him when she entered college. Previously, the daughter resided with the mother in New Jersey since she was 5 years old. However, the father claimed that she began residing with him full-time in Brooklyn after she enrolled in a college in Manhattan during the winter 2015 semester.

After a hearing, Support Magistrate John M. Fasone held that the father failed to establish that the daughter’s residence had changed and denied the father’s petitions to terminate his child support obligation and to receive child support from the mother. In its November 22, 2017 decision, the Second Department affirmed the order of Kings County Family Court Judge Judith Waksberg that had denied the father’s objections to Magistrate Fasone’s order.

Continue Reading Child Support Obligations Do Not Automatically Result Upon Relationship Changes

I’ve never really thought about it.

And although not exactly on point, the August 24, 2017 decision of Kings County Family Court Judge Javier E. Vargas in S.G v. B.G. sheds light on some of the issues a court may face when a child support payor his being “hidden.”

The parties were married in May 1993, and had two now-emancipated children. The father had been a successful diamond dealer and jeweler; the mother was a homemaker and caretaker of the children. In 2002, the parties divorced under a judgment that had incorporated a Separation Agreement. The father was to pay child support of $4,004.60 per month, as well as the children’s insurance, tuition and other educational expenses.

The father complied with his child support obligations until 2008 when he was arrested for fraud in “massive gem heists.” He was incarcerated between 2008 and 2011. Upon his release in May, 2011 until May 2014, the father apparently cooperated with the United States government and was purportedly placed in a safe house by the U.S. Witness Protection Program, under which he had assumed a new identity in another state.

Continue Reading When the Child Support Payor is in the Witness Protection Program

In its July 5, 2017 decision in Decillis v. Decillis, the Appellate Division, Second Department, recognized, but significantly reduced a credit against a formula child support obligation for the father’s extraordinary visitation travel expenses.

The parties were the parents of a child born in 2003. The mother filed a petition for child support. After imputing annual income of $43,000 to the mother, Suffolk County Family Court Support Magistrate Kathryn L. Coward determined that the father’s formula basic child support obligation would be $572 biweekly (grosses up to income of $94,729 per year). However, after gaving the father a $168 biweekly credit to compensate him for the “extraordinary” expenses associated with visitation, the Magistrate directed him to pay child support in the sum of $404 biweekly.

The Second Department first found that the Support Magistrate properly imputed $43,000 of income to the mother based upon her prior income, her choice to engage in only part-time employment, and her current living arrangement, in which she did not pay rent or related housing expenses.

However, the appellate court found that the Support Magistrate improvidently exercised its discretion in awarding the father a $168 credit against his child support obligation $168 for the “extraordinary” expenses associated with visitation, including $67 for travel expenses.

Continue Reading Travel Expenses Credit Against Child Support Reduced on Appeal

In a recent decision of the Appellate Division, Fourth Department, in Holeck v. Beyel, 145 A.D.3d 1600, 43 N.Y.S.2d 816, the court upheld a direction to a disabled father (the non-custodial parent) to apply to the Social Security Administration to change representative payee of the children’s social security disability (SSD) benefits from the father to the custodial mother. The appellate court also upheld the denial of the father’s request for a reduction in his support obligation by virtue of his loss of the SSD benefits for the children.

Generally, when a disabled parent is qualified for Social Security disability benefits, the children may also qualify to receive benefits on the disabled parent’s work-record. Eligible children can be a biological, adopted or stepchildren. Normally, benefits stop when the child reaches age 18 unless they are disabled. However, if the child at age 18 is still a full-time student at a secondary (or elementary) school, benefits will continue until the child graduates or until two months after the child becomes age 19, whichever is first.

Continue Reading Child Support and Social Security Disability Payments Received for the Children’s Benefit