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

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Legal feesIn its May 1, 2015 decision in Mura v. Mura, the Appellate Division, Fourth Department, affirmed an order of Monroe County Supreme Court Justice Richard A. Dollinger that enforced an ex-wife’s attorney’s charging lien against a fund from which child support arrears were to be paid.

The parties were divorced in 1993. The Monroe County judgment of divorce awarded the wife child support and ordered the husband to pay $25,226.72 in child support arrears that had accrued from the commencement of the divorce action through entry of the judgment.

For 16 years, the child support obligation was not enforced. In April 2011, the wife hired Mark Chauvin Bezinque, Esq., to recover the accumulated child support arrears that, with interest, totaled $549,403.62 as of September 2011.

At the time, the husband owned real property in Ontario County. Bezinque filed the judgment in Ontario County and commenced actions in both Ontario County and Monroe County to restrain the sale of the Ontario property. While those proceedings were ongoing, the husband sold the property in violation of a court order. Upon Bezinque’s motion, the husband’s share of the proceeds from the sale of the home was placed in escrow “in anticipation of a final judgment for unpaid child support.” Bezinque referred the wife to another law firm for the preparation of executions and levies against the escrowed funds held by the husband’s then attorneys, and requested payment of the outstanding balance of his legal fees from those funds. The wife did not respond to that request. Bezinque thereafter moved by order to show cause seeking, inter alia, a charging lien pursuant to Judiciary Law § 475 against the escrowed funds sufficient to cover his outstanding fees. The wife opposed Bezinque’s motion.Continue Reading Attorney's Charging Lien Enforced Against Child Support Arrears

Calulator on 100s 3In its April 1, 2015 decision in Pittman v. Williams, the Appellate Division, Second Department, reversed a decision of Supreme Court, Kings County Court Attorney/Referee (and now Family Court Judge) J. Machelle Sweeting that awarded child support equal to 17% of the father’s entire $441,000 income.  The Second Department also deleted a requirement that the father pay private school tuition after preschool, and allocated the wife’s child care expense equally between the father’s child and another of the mother’s children for whom care was provided.

In this child support proceeding, the parties’ combined income was $489,937. The father’s income represented 90% of this sum or C.S.S.A.-adjusted income of approximately $441,000 per year; the mother’s 10% share was approximately $49,000. Referee Sweeting directed the father to pay child support in the sum of $6,246 per month, child care expenses in the sum of $291.60 per week, and his pro rata share of the child’s tuition at the Brooklyn Waldorf School.

The Second Department reversed and remitted the matter for a new determination of the amount of the basic child support obligation.

The Child Support Standards Act sets forth a formula for calculating child support by applying a designated statutory percentage, here 17% for one child, to combined parental income up to a particular ceiling. The court, in fixing the basic child support obligation on income over the ceiling, i.e., the “statutory cap” (in this case, $136,000), has the discretion to apply the factors set forth in the statute, or to apply the statutory percentage, or to apply both.

However, there must be some record articulation of the reasons for the court’s choice to facilitate review. The court’s decision should reflect a careful consideration of the stated basis for its exercise of discretion, the parties’ circumstances, and its reasoning why there should or should not be a departure from the prescribed percentage. In addition to providing a record articulation for deviating or not deviating from the statutory formula, a court must relate that record articulation to the statutory factors.

Here, the Second Department held that the Referee properly determined that the parties’ combined parental income was $489,937. However, when determining the amount of child support, Referee Sweeting failed to articulate her reasons for applying the statutory percentage of 17% to the combined parental income over the statutory cap of $136,000. As a result, her determination was reversed. It was held that the matter must be remitted for a new determination in this regard and the court must articulate its reasons for the new determination.Continue Reading Reasons To Apply CSSA Formula to Father's $441,000 Income Must Be Stated; No Private School Payment Without Proof Of Superiority Of Education

Calulator on 100s 6 redThe Third Department gave us insight into its analysis of child support awards in two recent decisions in which it increased those awards.

What to do when the parents’ combined income exceeds the Child Support Standards Act (C.S.S.A.) cap, now $141,000, appears to be, at the trial level, often county-, if not judge-dependent. Use by the lower courts around the state upon these decisions will vary, perhaps greatly.

In Petersen v. Petersen, decided February 26, 2015, the Third Department increased the divorce-action award of Albany Supreme Court Justice Eugene P. Devine (now, himself, sitting on the Third Department).

The parties had one child, born in 1999. After the parties separated and lived apart for several years, the husband commenced this divorce action based on the parties’ separation agreement. After finding that the child support provision of the separation agreement did not comply with the Child Support Standards Act, a trial was held to address, among other things, child support.

Justice Devine granted the divorce, incorporated the parties’ separation agreement except for the weekly child support provision, and ordered the husband to pay child support in the amount of $414 per week, declining to order child support on any income above the C.S.S.A. statutory cap, then $136,000 (and now $141,000). The wife appealed.Continue Reading Increasing Child Support On Appeal: Awards On Income Over The Cap

Knight1All hail Sir Richard of Rochester! Chivalry is not dead.

Although opening his January 17, 2015 opinion in Cornell v. Cornell with “Sticks and stones will break my bones, But words will never harm me,” Monroe County Acting Supreme Court Justice Richard A. Dollinger nevertheless held that vile words to a child support-paying mother from her college-aged son were not to be tolerated.

As Justice Dollinger summarized, this case tested whether a son who engaged in vile disparagement of his mother, may strip his father of his right to claim support, including payment of college expenses. The Court held that it did.

No one should be permitted to refer to their mother in such fashion, and then, without recanting or asking for forgiveness, seek the court’s assistance to have that person support their future life. This court will not condone such actions by an unworthy son.

In his motion papers before the Court, the father sought child support from the mother and payment for college expenses. The mother argued that her obligations to pay any support – including the cost of college education – were obviated because of the child’s calculated estrangement from her. She claimed that her son described her as a “douche bag” and an “asshole,” and that this, among other behavior, has caused alienation between her and the son.Continue Reading Do You Kiss Your Mother With That Mouth?

It is often said that it is difficult, if not impossible to prove a negative. The concept may be extended to finding the intent of the parties to a contract, and more particularly a divorce settlement agreement

One would think a divorce settlement agreement would provide for all of the rights and obligations of a divorcing couple arising from their marriage, children, and divorce. So what happens when a subject is not specifically covered? If the agreement does not state that a specific child support-related expense is to be paid by the non-custodial parent, does that mean that that parent does not have such an obligation? Is an agreement required to specifically provide that any obligation not specifically stated does not exist?

Take the November 26, 2014 decision of the Appellate Division, Third Department, in Malone v. Malone. In that case, the Third Department upheld the denial of an ex-wife’s requested upward modification of the ex-husband’s child support because the underlying divorce settlement agreements were not unfair or inequitable when entered into; there was no proof the children’s needs were not being met (pardon the double negative); and there was no other basis for an upward modification. Doing so the Third Department affirmed the holding of Rensselaer County Supreme Court Acting Justice Peter A. Lynch.Continue Reading Divorce Settlements: It’s Not Just What You Say, But What You Don’t Say

The third of four decisions this month with an international context was decided by New York County Supreme Court Justice Manuel J. Mendez.

In Bond v Lichtenstein (pdf), decided July 15, 2014, Justice Mendez granted a mother summary judgment in lieu of complaint under C.P.L.R. §3213 domesticating a $570,110.05 Hong Kong judgment for child support arrears.

The parties lived together for approximately one year beginning in April of 2006. The mother is a citizen of the United Kingdom and the father is a citizen of the United States. Not long after the mother found out she was pregnant, the relationship fell apart, and by April of 2007, the parties had separated.

On August 31, 2007, their female child was born in England. The mother currently resides with the daughter in Hong Kong and with another man.

On November 21, 2008, the mother commenced child support and paternity proceedings in England. There was a trial and resulting December 3, 2010 Support Order from the High Court of England.

The parties then entered into a consent summons for the purpose of obtaining a “mirror order” in Hong Kong reflecting the support obligations obtained by the mother in England and vacating the English Order. In November of 2012, the father submitted to jurisdiction in Hong Kong for obtaining the “mirror order” and resolving other related issues.

In May of 2013, the proceeding brought before the High Court of Hong Kong resulted in a four-day trial concerning child support. The father appeared for the trial by video. He submitted evidence and was represented by attorneys. On June 28, 2013, the High Court of Hong Kong, by Deputy High Court Judge, Bebe Pui Ying Chu, rendered an 87-page Opinion.Continue Reading Melting Pot (Part 3 of 4): Domesticating the Foreign Child Support Judgment