Allowing a state of facts to exist for a period of time without objection will often lead a court to continue those facts. Here, the court required a father to contribute to the cost of his son’s private school education, where the child had been attending the school for some 10 years, even though a
Awarding Child Support to the "Non-Custodial" Parent
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There is a gap in New York’s child support statutes. They do not contemplate a custodial parent paying support to a non-custodial parent.
The Family Court Act does declare that both parents are chargeable with the support of their children. Moreover, the Family Court Act does not make a distinction between the “custodial” and “non–custodial” parents when declaring that parents of a child under the age of 21 years ,“if possessed of sufficient means or able to earn such means, shall be required to pay for child support a fair and reasonable sum as the court may determine.” F.C.A. §413(1)(a). (The Domestic Relations Law contains no such preamble to its section providing for an award of child support within matrimonial actions.)D.R.L. §240(1-b).
However, those same Family Court Act and the Domestic Relations Law provisions provide that awards of child support “shall″ be made “pursuant to the provisions” of those subdivisions. The subdivisions, then, set out the presumptive formula to determine awards of child support. The presumptive formula is to be varied only in the event the court finds, based upon factors specified, that the “non-custodial parent’s pro rata share of the basic child support obligation is unjust or inappropriate.” In all events, the statutes only contemplate support being paid by the non-custodial parent to the custodial parent.
Although the statutes carefully define many of the terms used, “non-custodial parent” is never defined. Thus, in ever-increasing scenarios, the courts have had to decide who is the “non-custodial.”
In Bast v. Rossoff, 91 N.Y.2d 723, 675 N.Y.S.2d 19 (1998), the Court of Appeals recognized that in most instances, the court can determine the custodial parent by identifying which parent has physical custody of the child for a majority of the time. In cases where the child’s time was divided approximately equally between the parents, the more-monied parent has been deemed the non-custodial parent because such a rule maximizes the benefits realized by the child at both homes. Baraby v. Baraby, 250 A.D.2d 201, 681 N.Y.S.2d 826 (3rd Dept. 1998).
Nonetheless, the best interests of a child may require an award of child support from the custodial parent to the non-custodial parent.
Take, for example, New York County Supreme Court Justice Ellen Gesmer’s February 29, 2012 decision in M.R. v. A. D. In that case, the court denied a father’s motion for summary judgment dismissing a mother’s claim for child support. In a painstaking decisionmade earlier in the case, Justice Gesmer (32 Misc.3d 512, 928 N.Y.S.2d 429) awarded the parents “parallel custody” of their 6-year old son with significant learning disabilities. After a through review of the evidence, and as neither parent was sufficiently better than other parent to warrant an award of sole custody, Justice Gesmer gave the father primary custody during school year, and gave the more permissive and disorganized mother primary custody during summer and other school breaks.Continue Reading Awarding Child Support to the "Non-Custodial" Parent
Court Extends Parent's Obligation to Pay College Expenses Beyond Child's 21st Birthday
A recent decision of the Appellate Division, Third Department, appears to unduly expand the basis upon which a parent may be obligated to contribute to the college education expenses of a child beyond age 21.
Generally, a parent’s obligation to support a child terminates when the child reaches age 21. That general rule, of course, may be varied by the parents themselves by agreement.
Indeed, it is quite common to extend by agreement a parent’s support obligation, beyond the date on which a child turns 21, in a written separation agreement or divorce action stipulation of settlement, whether written or entered in open court. Such agreements often have an “emancipation” clause which defines the circumstances under which a child will be deemed emancipated for the purposes of the parent’s support obligation to a time either before or after child reaches age 21. Again, it is common to delay emancipation until the child turns 22 or thereafter, if the child is enrolled on a full-time basis in an accredited college, university or other post-high school educational program. If properly entered, such agreements are routinely incorporated into divorce judgments or other support orders. They are enforceable in both Supreme and Family Courts.
In its January, 2012 decision in Shapiro v. Shapiro, the Third Department affirmed a divorce judgment which, in part, obligated a father to contribute his pro rata share of college expenses until each child reaches the age of 22.
The court acknowledged that absent an agreement extending the obligation, a parent is not legally obligated to pay college costs for a child that has reached the age of 21. However, the court found that such an agreement could be inferred from statements which did not expressly exclude post-21 expenses from a statement agreeing to contribute to college. The sole basis of the Third Department’s decision was as follows:
Plaintiff acknowledged in his testimony that he had, in fact, agreed to pay part of the children’s college education costs, there was no indication that he intended to limit his payments to the children’s first three years in college, and proof at trial established that funds had been previously set up to assist in such costs. Under these circumstances, it was not error for Supreme Court to direct plaintiff to pay a portion of the children’s college costs until they reach the age of 22.
Appellate Decision Clarifies Temporary Maintenance Calculations; Temporary Child Support Awards Must Be Next
In the first appellate decision to apply the October 12, 2010 temporary maintenance amendment to the Domestic Relations Law, it was held that the recipient’s share of marital residence carrying charges is within the temporary maintenance award, itself. It was improper to have the payor spouse pay carrying costs directly in exhange for a credit against income before calculating maintenance.
In the February 7, 2012 decision in Khaira v. Khaira, the Appellate Division, First Department, considered the breadth of D.R.L. §236B(5-a). No longer was the temporary (pendente lite) maintenance award used simply to “tide over the more needy party,” but rather to provide “consistency and predictability in calculating temporary spousal maintenance awards.” The amendment “creates a substantial presumptive entitlement.”
The First Department modified the April 1, 2011 order of New York County Supreme Court Justice Deborah A. Kaplan. In the case before it, Justice Kaplan had “properly followed the initial procedures” to determine that the presumptive temporary maintenance award would be $138,000.00 per year ($11,500.00 per month), at least based on the husband’s first $500,000.00 of income. Justice Kaplan, then, analyzed the reasonable needs of the wife and children after taking into account husband’s payment of the mortgage and health insurance and expenses. Justice Kaplan, then, awarded the wife $13,870.00 in monthly unallocated spousal and child support payments, in addition to requiring the husband to pay the $5,317.00 monthly mortgage payments and the family’s $855.00 monthly health care premiums and medical expenses. The award and expenses totaled $20,041.00 per month. Justice Kaplan, however, did not discuss the factors required by the amendment to be considered when making an award in excess of the formula applied to the first $500,000.00 of a spouse’s income.
Before remanding the issue to Justice Kaplan for redetermination, the First Department focused on the “suggestion” inherent in her decision “that the formula was intended to cover the support needs of the non-monied spouse, such as food and clothing, but not the cost of the mortgage payments for her residence.” However, because any specific reference to the carrying charges for the marital residence was absent from the temporary maintenance formula amendment, the First Department considered:
[It was] reasonable and logical to view the formula adopted by the new maintenance provision as covering all the spouse’s basic living expenses, including housing costs as well as the cost of food and clothing and other usual expenses.
The First Department noted that prior to the amendment, it was common to award support both in cash payments to the spouse as well as to third-parties. That practice was “not only eminently reasonable, but also the most expedient way of covering payment of the necessities, and protecting the home as a marital asset.” The “new approach” changes that, instead awarding “the amount that will cover all the payee’s presumptive reasonable expenses.”
The First Department did not rule out the possibility of a direct mortgage payment, but, as required by the statute, only after the analysis of income in excess of the $500,000.00 cap was made.
The impact of this decision is clear. However, it also reveals the lack of logic in the remaining support calculations required by the various support provisions.Continue Reading Appellate Decision Clarifies Temporary Maintenance Calculations; Temporary Child Support Awards Must Be Next
Divorced Parents may be Liable to Provide Children with a Private College Education
It is not uncommon for divorce settlement agreements to limit a parent’s contribution to a child’s college education to a portion of the expense to attend a campus within the State University of New York system. This is known as the “SUNY cap.”
A scholarly October, 2011 decision of New York County Supreme Court Justice Matthew F. Cooper tackled head-on the assumption that a court would not impose on a parent a share of the expenses of a private college education.
Pamela T. v. Marc B., involved the parents of 16- and 18-year old sons. The older boy, a child with “moderate emotional difficulty,” was a freshman at Syracuse University intending to study computer engineering and computer graphics. He was a graduate of a selective public Manhattan high school. The decision resolved the father’s objection to paying more than his share of a SUNY education.
A SUNY education would cost approximately $18,000 per year. Syracuse University, on the other hand, costs three times that amount, some $53,000 per year.
Both parents were lawyers, with private college and law school backgrounds. Each parent earned just over $100,000 per year. The mother had some $1,230,000 in savings and retirement accounts; the father $580,000.
Justice Cooper directed the father to bear 40% of the costs of that Syracuse University education. There is no SUNY cap mandated by New York law. The thrust of Justice Cooper’s decision was that:
the SUNY cap–to the extent that it stands for the proposition that before a parent can be compelled to contribute towards the cost of a private college there must be a showing that a child cannot receive an adequate education at a state college–is a doctrine that in many cases is harmful to the children of divorced parents, acts to discriminate against them, and is largely unworkable.
Continue Reading Divorced Parents may be Liable to Provide Children with a Private College Education
College Financial Aid and Calculating the Divorced Parent's Pro Rata Obligation for Tuition
August is off-to-college month. For divorced parents, the joys and sorrows of a child leaving the nest are often compounded by the parents’ disagreement over their division of college expenses.
Last Spring’s decision of the Second Department in Yorke v. Yorke provides guidance. The parties are the parents of a child who entered college beginning in the Fall 2007 semester. By two 2007 orders, the father was directed to pay 83% of the college tuition for the subject child prior to March 2009, and 82% of the tuition thereafter.
Those orders provided that the father was not responsible for contributing towards the child’s room and board at college. This 2011 opinion did not discuss why room and board had been excluded, or the basis for the prospective (2009) change in the allocated percentages.
Instead, this 2010 Family Court, Orange County, proceeding involved only the calculation of the father’s share of tuition. At the heart of the dispute was the effect of the child’s financial aid package, both as it reduced the tuition expense, but also as it was required to be spread over the costs for room and board.Continue Reading College Financial Aid and Calculating the Divorced Parent's Pro Rata Obligation for Tuition
Defining or Questioning the Marriage Contract: Gay Marriages, No-Fault Divorce and Dissolved Civil Unions
Last week, the Appellate Division, Third Department, exercised its equitable muscle to filling in the gaps while the marriage and divorce laws of the different states catch up with each other. On July 21, 2011, in Dickerson v. Thompson, the court granted a dissolution of a Vermont civil union.
Under Vermont law, the civil union entered by the gay couple was not a marriage. As a result, a New York divorce, “no-fault” or otherwise, was not the appropriate remedy. The appellate court noted that as “the plaintiff would be entitled to a dissolution of a civil union in Vermont,” but for her failure to be a current resident of that state. Giving the plaintiff her need relief, the court declared the broad equity powers of the New York Supreme Court were sufficient to declare the Vermont civil union dissolved. Thus, the plaintiff would now be free to marry, domestically partner, or re-unite with another.
While New York tore asunder one gay couple, more than 800 gay couples were able to marry on July 24, 2011, the first day of such unions under New York’s same-sex marriage legislation. New York is still coming to grips with joining the rest of the country by making the dissolution of a marriage a matter of one spouse’s choice: a simple declaration that the marriage has broken down irretrievably. That law is just under 10 months old.Continue Reading Defining or Questioning the Marriage Contract: Gay Marriages, No-Fault Divorce and Dissolved Civil Unions
Child's Economic Independence, Not Full-Time Employment, Signals End of Support Obligation
At age 18, the child becomes an adult, legally beyond the reach of parental decisions. However, not until age 21 does the legal obligation to support that child come to an end (unless extended by agreement).
A parent’s obligation to support may end (or be suspended) before that, as when a child marries, enters the armed forces, or becomes economically independent. However, as a practical matter as long as the child remains under a parent’s roof, economic independence may not be found.
Take the June 28, 2011 of the Appellate Division, Second Department, in Smith v. Smith. There, the Court affirmed Suffolk County Family Court Richard Hoffman ‘s denial of a father’s objections to the order of Support Magistrate (and Pace Law School Professor) Cheryl Joseph-Cherry which awarded $200.00 per month child support to the wife/mother.
The parties’ son worked full-time. He paid for his own car insurance and cell phone. However, the appeallate court found it persuasive that the mother still paid for his food, shelter, clothing, and health and dental insurance.
The decision does not provide greater detail. We don’t know what the child “does” or how much the child earns. Presumably, if the child is in school, we would have been told.
However, the Court did place primary reliance upon the First Department’s 2009 decision in Matter of Thomas B. v Lydia D. That decision, itself placed heavy reliance upon the Second Department’s decision in Matter of Fortunato v. Fortunato, 242 A.D.2d 720, 662 N.Y.S.2d 570 (1997). In Fortunato, the child was found to be emancipated because he was:
working an average of 30 to 35 hours per week … [,] he used his earnings to meet all of his personal expenses, including car insurance payments and telephone charges, and … he voluntarily contributed modest sums to his mother for room and board. Moreover, the son was not attending school, and had no plans to save money for tuition or return to college in the immediate future.Continue Reading Child's Economic Independence, Not Full-Time Employment, Signals End of Support Obligation
Applying the Child Support Formula in Shared Parenting Arrangements
No two custodial arrangements are the same. They are as different as the children and parents themselves. As a result, the application of a presumptive child support award to the “deemed” custodial parent is inherently arbitrary.
Take the May 5, 2011 decision of the Third Department in Riemersma v. Riemersma. The issues in the parties’ divorce concerning support of their twins had been referred to Family Court Support Magistrate Jonathan A. Heussi. The Magistrate determined in his October, 2009 order that the mother was the custodial parent.
The mother was a State Trooper working seven 7:00 p.m. to 7:00 a.m. shifts out of every 14 days. She earned $87,857 annually. The father, an urban forestry program manager, worked weekdays from 8:00 a.m. to 4:30 p.m. He earned $50,392 annually.
The parents crafted their parenting plan so that each parent would care for the children while the other was at work. Overnights were divided equally. However, because of the mother’s night-shifts, the court determined that the children spend 65% of the time with their mother. As a result, Magistrate Heussi’s finding that the mother was the custodial parent for C.S.S.A. purposes was affirmed a year and a half later in this appellate decision.
Strictly applying the C.S.S.A. formula would have resulted in the father paying $442 bi-weekly as his base support obligation. The magistrate had determined that such an award would have been unjust and inappropriate. Instead, he awarded the mother $200 bi-weekly.
With joint or shared arrangements the identification of the deemed custodial parent should be based upon the “reality of the situation.” The appellate court agreed the mother should be deemed the custodial parent. While a mechanical comparison of hours was not countenanced, the overall time spent with each parent was to be considered. Here, presumably because the mother worked while the children slept, she spent more time “with the children.”
The appellate court also approved the monetary result, but criticized the Magistrate for his reliance upon each parent’s need to maintain a suitable residence for the children. The “Support Magistrate failed to specify the factors relied upon to deviate from the presumptively correct child support amount or the extent, if any, of the expenses justifying such a deviation . . . . Indeed, at the fact-finding hearing, defendant testified that he had not incurred any unusual or extraordinary expenses related to the care of the children.”
Furthermore, we have previously held that the costs of maintaining suitable housing and providing food and clothing for the children during custodial periods do not constitute extraordinary expenses that would justify a deviation from the statutory formula.
Nonetheless, based upon the appellate record, the Third Department was able to determine that the application of the presumptive formula would have been unjust and/or inappropriate based the non-monetary contributions of the father and the fact that the father’s income was substantially less than the mother’s.Continue Reading Applying the Child Support Formula in Shared Parenting Arrangements
Severability: When Only One Provision of a Divorce Settlement Agreement Is Invalid
What happens when only one provision of an agreement is invalid because it violates some statute or public policy? The answer may depend on who the court wants to benefit, instead of consistently-applied rules of contract law.
Take, for example the April 5, 2011 decision of the Second Department in Duggan v. Duggan. In that case, the parties had resolved their divorce by a surviving February 26, 2009 stipulation of settlement. Under that stipulation, the father, who had gross income of $475,000.00, agreed to pay a base monthly child support obligation of $8,000.00. That amount deviated from the presumptive amount under the Child Support Standards Act (C.S.S.A.) of $11,929.54. The mother had no income.
Apparently, the stipulation also had a provision which called for the reduction in the father’s monthly obligation in the event his income was reduced.
In 2010, the mother brought a Family Court enforcement proceeding when the father ceased making the payments to which he originally agreed. The father raised the stipulation’s modification provision, arguing that his $8,243.00 annual reduction in income to $466,757.00 entitled him to a $76,800.00 annual reduction in child support (to $1,600.00 per month)!
Finding that the father’s interpretation of the stipulation modification provision was “not plausible,” Nassau County Family Court Judge Julianne S. Eisman denied the father’s objections to the Order of Support Magistrate Tejindar S. Kahlon which granted the mother’s arrears petition. Finding that the language of the Stipulation, as interpreted by the father, would violate the C.S.S.A., and was against the best interests of the children, the modification provision was ignored.
On appeal, the Second Department affirmed, holding that the Family Court had the authority to find that a provision in a stipulation of settlement violated the C.S.S.A. The appellate court found that a provision which called for a reduction in child support to 13% of the presumptive C.S.S.A. amount, merely because the father’s income dropped by 1.7% was “against the best interests of the children.”
It is noteworthy that the appellate court did not quote the startling modification provision. Equally noteworthy is that there was no discussion of any interpretation of the modification provision other than the one the Family Court considered implausible.
In order to have obtained the Judgment of Divorce, it would have been necessary to have made the recitation in the stipulation of settlement that the parties had been made aware of the C.S.S.A. and its presumptive formula in their case. D.R.L. §240(1-b)(h). The parties would have had to have stated the reasons they agreed to deviate from the C.S.S.A guidelines. Specific Findings of Fact would have been made by the Supreme Court upholding those reasons.
It is understandable that the presumed failure of the Supreme Court to review the specific modification provision might not estop the mother from later attacking that provision when it was sought to be applied. Thus, the form language of a divorce judgment that “the parties are directed to comply with every legally enforceable term and provision” of the agreement incorporated into the judgment, does not mean that every provision is, in fact, legally enforceable.
What then is, or should be the impact of rendering unenforceable only one provision of a settlement agreement?Continue Reading Severability: When Only One Provision of a Divorce Settlement Agreement Is Invalid