Unemployment, alone, is not sufficient to avoid incarceration for the willful failure to pay child support. So held the First Department when on April 8, 2014 it affirmed the determination of Bronx County Family Court Judge Sidney Gribetz in Gina C. v. Augusto C.
Based upon the fact-finding determination of the Support Magistrate, Judge Gribetz
It is certainly not a rare problem. When confronted with fraudulent income tax returns, what is a divorce court to do? Should they be used as swords or shields?
In her January 31, 2014 decision in Morille-Hinds v. Hinds, Supreme Court Queens County Justice Pam Jackman Brown appears to have disregarded the failure to report a husband’s income on the parties’ joint income tax returns when recognizing his claim to a 50% share of marital property. Nevertheless, those returns were honored when fixing the wife’s entitlement to child support.
The parties, both 54, married in 1993. The wife had commenced this divorce action in 2007. The husband had appealed from the 2009 decision of Judicial Hearing Officer Stanley Gartenstein who had awarded him only 15% of the marital property. The J.H.O. had also imputed to the husband an annual income of $80,000 for the purpose of determining his child support obligation. The Second Department reversed, holding that decision was patently unfair to the husband. The case was sent back for a retrial on the issues of equitable distribution and child support.Continue Reading Fraudulent Tax Returns in Divorce Actions: Sword or Shield?
Where a divorce settlement agreement contains a SUNY cap on the parents’ obligations to contribute to college expenses, do you subtract financial aid first from the SUNY cap, or first from the total actual costs of the child who chose to attend a private college? Do you include loans in the “financial aid” formula?
In its February 20, 2014 decision in Apjohn v. Lubinski, the Third Department decided to benefit the child.
The parties’ 1994 separation agreement contained a SUNY cap provision limiting the obligations of these parents to contribute to their then 1-year-old son’s college education. Each parent’s obligation would be limited to half of the cost of tuition, room and board at a college or university that is part of the State University of New York.
The agreement further provided that the son must apply to “the said college or university” for all possible grants, scholarships and financial aid before either party would be obliged to pay any college costs. Here, the son applied for and obtained financial aid from the private college where he enrolled in September 2011. the son also received an outside scholarship.
Refusing to make any contribution, the father contended that the agreement required the son to apply to a SUNY institution for financial aid. As the son did not do so (he applied to his private college), the father argued he had no obligation to contribute anything.
The Third Department resolved the ambiguity as to whether the requirement to apply to “the said college or university” for financial aid referred to a SUNY institution or to the college attended by the son, by noting that the agreement did not require the son to attend or apply for admission at a SUNY school. (The father also did not show that it was possible to apply to a SUNY institution for financial aid without also applying for admission.)Continue Reading Applying the Ambiguous SUNY-Capped Contribution-to-College Clause
The alleged failure of the mediator and the husband’s counsel to advise the husband that a court need not apply the C.S.S.A. formula to the husband’s entire agreed-upon income of $1,200,000.00 per year income is not a basis to set aside a divorce settlement agreement, or its $29,500.00 per month child support obligation. So held Westchester County Supreme Court Justice Lawrence H. Ecker in his January 16, 2014 opinion in A.B. v. Y.B.
The couple involved separated after 12 years of marriage. Following three years of mediation, the parties entered into an agreement that resolved issues of custody and access to the parties’ three children, maintenance, child support, and equitable distribution. The husband is a 50% equity partner in a brokerage firm. The wife is owner and operator of her own business.
Upholding the agreement, Justice Ecker took pains to quote several of its provisions. One acknowledged that the parties had waived the “compulsory financial disclosure” requirements of the Domestic Relations Law and court rules, and agreed not to exchange Net Worth Statements. Nonetheless, the parties represented to each other that each made a full and complete disclosure of assets, liabilities, income and expenses, and that they relied on the information provided.
The agreement recited the husband’s disclosure, to the best of his knowledge, of his gross personal 2010 income as approximately $156,427.00. The parties agreed to use the 2010 income because their 2011 income was not yet available. The Husband disclosed that in no event was his income from any and all sources more than $156,427.00 in said year.
Nonetheless, for purposes of the agreement, the parties agreed to use an imputed income of$1,200,000 in computing the child support calculation under the Child Support Standards Act.
The parties acknowledged that they reached their agreement with the aid of the mediator, but that the mediator provided no legal representation to either of the parties. Further, although “the mediator may have provided information or opinions concerning the state of the law generally, neither party has relied upon such information or opinions in executing this Agreement.”
The parties further represented that each had ample opportunity to obtain independent legal counsel, and counsel [apparently recommended by the mediator] for each spouse was named.
As to the basic child support obligation, the agreement provided it was agreed that the the husband’s would pay $29,500 per month [$354,000 per year] for 12 years, 5 months, subject to a cost of living increase biennially. The husband was further responsible for 100% of discretionary expenses and add-on expenses, including private school tuition for all three children, private college expenses, camp and summer programs, religion education expenses, Bar and Bat Mitzvah expenses, health insurance and unreimbursed medical expenses.Continue Reading Claimed Ignorance of C.S.S.A. Treatment of Income Over Cap Not Basis to Set Aside Divorce Settlement Agreement
The required C.S.S.A. recitation in an oral open-court stipulation by which the parties explain why they have agreed to a child support obligation varying from the presumptive C.S.S.A. formula may not have to be as “precise” as that required in a written stipulation. Such appears to be the holding of the Appellate Division, Second Department, in its January 22, 2014 decision in Rockitter v. Rockitter.
On August 9, 2010, the parties had entered two stipulations to settle their divorce action. A written stipulation covered the parties’ joint custody of their two daughters. The second stipulation was oral, made on the record in open court and concerned child support and equitable distribution. Both stipulations were subsequently incorporated, but not merged, into the parties’ judgment of divorce.
Approximately 18 months later, the ex-wife commenced this action seeking to vacate the child support provisions of the oral support stipulation and the judgment of divorce. The ex-wife alleged that the support stipulation failed to comply the Child Support Standards Act because the parties did not make the required recitation of the reasons they chose to deviate from C.S.S.A. guidelines. Nassau County Supreme Court Justice Norman Janowitz granted the ex-husband’s motion to dismiss the complaint. The Second Department affirmed.
The C.S.S.A. requires that any agreement varying its presumptive child support formula contain specific recitals:
Continue Reading C.S.S.A. Recitiation Requirements Relaxed for In-Court Child Support Sipulation
What is a “mandatory” college expense to be shared by the parents?
In its January 15, 2014 decision in Shaughnessy v. Cox, the Second Department upheld the order of Nassau County Family Court Judge Robin M. Kent (which in turn upheld the determination of Support Magistrate Neil Miller) directing the father to pay 50% of the college expenses of the parties’ children regardless of their emancipation. The parties’ stipulation of settlement of their divorce action so provided. Moreover, the father’s obligation included the repayment of expenses which were paid from the proceeds of student loans.
However, Magistrate Miller had required the father to pay those expenses “upon the mother’s presentation of proper documentation directly to him . . . .” This, the Second Department held was error. Rather, the documentation should be provided by the mother first to the Family Court. The Court would determine whether the expenses were mandatory and, therefore, payable by the father pursuant to the parties’ agreement.
Setting up a situation in which parties are required to go, in the first instance, to a court to determine whether a college expense is “mandatory,” seems like extra work is being created. Here, it is not explained why the mother did not present proper documentation of expenses prior to Magistrate Miller making his ruling. Alternatively, the appellate court could have set up a procedure by which only if the father disputed the mandatory nature of expenses claimed by the mother would further Family Court proceedings be necessary.
Once again, the controversy results from the failure of an agreement to properly set forth the categories of college expenses to be shared. Apparently this agreement only specified “mandatory” expenses.Continue Reading Ambiguous Agreements to Pay for Children's College Expenses
Three Second Department decisions within eight days this month reveal the discretion of the trial court when income is not apparent (no pun intended) on a determination of a parent’s basic child support obligation.
In Fein v. Fein, the Appellate Division, Second Department, affirmed the determination of Westchester County Supreme Court Justice Bruce E.
When calculating a child support obligation, what effect does a simultaneous spousal maintenance award have? The November 21, 2013 decision of the Appellate Division, Third Department, in Alecca v. Alecca reveals the conflict among the Departments, questions of logic, and the need for action by the Legislature.
Agreeing with Judge Anthony McGinty, deciding for the Ulster County Supreme Court, the appellate court held in Alecca that if a spousal maintenance award does not terminate until after all children have been emancipated, the maintenance award may not be deducted from the payor’s income for child support calculation purposes. Spousal maintenance does get deducted if it terminates before all children are emancipated and the awarding court provides for a specific adjustment of child support at the time of the maintenance termination.
Child support is presumptively the function of the Child Support Standards Acct (C.S.S.A.) formula (D.R.L. §240 [1-b]; F.C.A. §413). Depending upon the number of children to be supported, the presumptive formula is a certain percentage of parental income, with the obligation of the support payor being the payor’s pro rata portion of the combined parental income of both parents. In addition to the basic child support obligation, the parents’ obligation to pay additional amounts for health and child care expenses is also presumptively a function of the parents’ pro rata shares of their combined income. Although relevant, an add-on obligation for educational expenses (if warranted by the circumstances, justice, and the best interests of the child) is not expressly a function of pro rata shares.Continue Reading Child Support Computations When Spousal Maintenance is Awarded
The calculations required by the C.S.S.A. to be made by an arbitrator in child support determinations provide the “extraordinary circumstances” needed to warrant court-ordered disclosure of documents from a self-employed ex-husband. Such was the ruling of Kings County Supreme Court Justice Jeffrey S. Sunshine in his November 6, 2013 decision in Weisz v. Weisz.
In 2003, the Weisz’s had entered into a stipulation of settlement of their divorce in which they agreed that all controversies, disputes, or interpretation of this agreement, would be arbitrated by a specified rabbi. The 2004 judgment of divorce incorporated by reference that stipulation which survived and did not merge into the judgment.
In 2012, Ms. Weisz brought on an order to show cause seeking a stay of a post-judgment arbitration proceeding and the disqualification of the specified rabbi as the arbitrator. The stay was granted as to custody and visitation issues, but denied as to all financial issues.
The issues to be arbitrated related to an upward modification of child support, child support arrears, unreimbursed medical arrears, child support statutory add-on arrears, tutor expenses and spousal support.Continue Reading Court Orders Disclosure to Aid in Arbitration of Child Support Issues
Where a divorce settlement agreement provides that the parties have agreed to deviate from the Child Support Standards Act formula in part because of the time the “non-custodial” parent is to spend with the children, a substantial reduction in that visitation may result in an increase in the child support obligation.
Such was the holding of the Fourth Department in its September 27, 2013 decision in Gallagher v. Gallagher.
That parties’ original child support obligation was fixed by their separation agreement. That separation agreement had been incorporated, but did not merge into the parties’ Judgment of Divorce. The agreement recited that the father’s obligation varied from the Child Support Standards Act formula due to several factors including the fact that the children were to spend a significant portion of time with the father pursuant to the visitation schedule set forth in the separation agreement. [We are not provided with the amount of the child support obligation, the incomes of the parties, nor the agreement’s visitation schedule.]
When the father’s relationship with the children broke down, the mother petitioned the Steuben County Family Court for an upward modification of the father’s child support obligation. She alleged that there was now only sporadic visitation with the children, as a result of which the mother claimed a concomitant increase in her child-rearing expenses.
The evidence presented before Family Court Judge Joseph W. Latham established that such a breakdown occurred. However, Judge Latham ruled that the mother failed to establish a sufficient change in circumstances to warrant modification of the father’s child support obligation.
The Fourth Department disagreed. Quoting the 2002 decision of the Court of Appeals in Gravlin v. Ruppert, 98 N.Y.2d 1, 6, 743 N.Y.S.2d 773 (2002), the Fourth Department stated:
The complete breakdown in the visitation arrangement, which effectively extinguished [the father’s] support obligation, constituted an unanticipated change in circumstances that created the need for modification of the child support obligations.
The Fourth Department therefore reversed the order, reinstated the mother’s petition, and remitted the matter to the Family Court for a determination of the appropriate amount of support to be paid by the father, after a further hearing if necessary.Continue Reading Sporadic Visitation by Father is Basis to Increase Child Support