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

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What does a court do with a wife who claims not to have discovered that she was a million-dollar winner of a May 19, 2011 lottery drawing until only days before the ticket would have expired a year later, and 11 months after she was awarded temporary support and counsel fees in her pending divorce action?

Almost a year ago, the media covered the claim of Lolymary Questel, a Queens pre-school teacher, that she discovered her million-dollar lottery ticket in her purse only days before the one-year deadline to produce the ticket to the Lottery Commission would have expired. “I was cleaning out an old bag and found some Lottery tickets,” explained Questel to the Lottery Commission. “I checked the drawing results on the Lottery’s website and realized one of the tickets was a million dollar winner.” Questel, a regular Mega Millions player, spent $1 on a set of Quick Pick numbers for the twice weekly drawing.

Seven months before the drawing, Ms. Questel’s husband had commenced his divorce action on October 28, 2010 (just weeks after New York’s no-fault law went into effect).

On June 22, 2011, 5 weeks after the lottery drawing, Queens County Supreme Court Justice Pam B. Jackman-Brown awarded Ms. Questel temporary maintenance of $127.39 per week and $4,500.00 in interim counsel fees. In April, 2011, less than a month before the drawing, Mr. and Ms. Questel had entered a Stipulation under which Mr. Questel agreed to pay C.S.S.A.-formula interim child support and his then  77% pro rata share of educational, extracurricular, summer camp and unreimbursed health expenses.Continue Reading Wife Wins Million-Dollar Lottery While Divorce Action Is Pending

The First Department, in its February 19, 2013 decision in David v. Cruz, threw out an entire settlement agreement because of its failure to include  language required by the Child Support Standards Act.

The C.S.S.A. sets out a presumptive formula for the calculation of a parent’s child support obligation.

Parents are free to agree to vary the formula and fix their own base periodic child support obligation. They may also fix the parents’ respective liabilities for addition health care, child care and add-on expenses, if not others. However if they so agree, the parents must recite in their agreement what would have been the results had the presumptive statutory formula been applied.

As noted by the First Department, an agreement purporting to opt out of the presumptive basic child support obligations set forth in the Child Support Standards Act must include a provision stating that the parties have been advised of the provisions of the C.S.S.A., must specify the amount that the basic child support obligation would have been, and must state the reason or reasons for the deviation (Family Court Act § 413 [1] [h]; Domestic Relations Law § 240[1–b][h]). That required recitation may not be waived by either party or by counsel.Continue Reading Settlement Agreement’s Failure to Include C.S.S.A. Recitation Invalidates Entire Agreement

In a February 13, 2013 decision. the Second Department in Braun v. Abenanti directed a father to pay his child’s orthodontist directly and also directed that the mother’s petition for an upward modification of child support be granted.

Doing so, the Second Department reversed Family Court, Suffolk County Judge Richard Hoffmann, who in turn had denied the mother’s objections to an order of Support Magistrate Isabel Buse. The Magistrate’s order, after a hearing, granted the mother’s petition to enforce a 2001 support order only to the extent of directing the father to reimburse the mother the $20 she had paid to the orthodontist. Magistrate Buse also denied the mother’s petition for an upward modification of that decade-old support order.

As for the orthodontia, the 2001 order directed the father to pay 100% of “future reasonable health care expenses not covered by insurance.” The child had orthodontia expenses of $1,329 that were not covered by insurance, of which the mother could only afford to pay $20.

The Second Department acknowledged that as the mother demonstrated that she paid $20 of the child’s unreimbursed orthodontia expenses, the Family Court’s award of only $20 to the mother was properly limited to “those sums for which the mother submitted proof of actual payment to the third-party medical providers.”Continue Reading Father Directed to Pay Orthodontist Directly; and Mother Entitled to Upward Modification

Two decisions within the last 10 days confirm the need for agreements relating to support to be in (an acknowledged) writing, and then incorporated in a court order.

In one, the Second Department affirmed the award of maintenance arrears without a hearing despite the claimed reduction of maintenance under an oral modification of the parties’ separation agreement. In the second, Albany County Family Court Judge W. Dennis Duggan directed a father to pay 71% of his older son’s private middle school expense, despite the mother’s conceded agreement to pay the full tuition.

In its January 30, 2103 decision in Parker v. Navarra, the Second Department affirmed the award of maintenance arrears by Dutchess County Supreme Court Justice James V. Brands. The ex-husband alleged that he and his ex-wife had orally modified the maintenance provisions of their separation agreement and, alternatively, that the ex-wife should be equitably estopped from enforcing the maintenance provisions of the separation agreement. The ex-husband had requested an evidentiary hearing so that he could present the testimony of witnesses on those issues. Justice Brands denied the request for an evidentiary hearing, awarding arrears on the basis of the parties’ submissions.

The Second Department affirmed, noting that the ex-husband failed to make a showing sufficient to entitle him to a hearing on this issue:

Where, as here, the parties’ separation agreement contains a provision that expressly provides that modifications must be in writing, an alleged oral modification is enforceable only if there is part performance that is unequivocally referable to the oral modification. The defendant did not demonstrate that the plaintiff’s acceptance of reduced monthly maintenance payments was unequivocally referable to an alleged oral modification by, for example, demonstrating that consideration was given in exchange for the plaintiff’s alleged oral agreement to accept reduced maintenance payments.

Moreover, to establish a defense of equitable estoppel, the ex-husband was required to have shown that the ex-wife’s conduct induced his significant and substantial reliance upon an oral modification. Again, the ex-husband was required to have shown that the conduct relied upon to establish estoppel was not otherwise  compatible with the agreement as written.Continue Reading Support Modification Agreements: Get’em in Writing; Get’em into Court (Part II)

Update: May 23, 2013: Robert Sand pleaded guilty in U.S. District Court in Central Islip today to two counts of failing to pay child support. According to Assistant U.S. Attorney Alan Bode, Mr. Sand owes more than $1.2 million, including interest and penalties, to three children from two failed marriages. Sand faces up to four

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Calulator on 100s 3.jpgTwo decisions last month of Queens County Supreme Court Justice Pam Jackman Brown provide insights on how courts might cope with the overlap of the statutory temporary maintenance formula and the payment of marital residence carrying charges.

Yesterdays blog reported upon the Second Department’s November 21, 2012 agreement in Woodford v. Woodford with the First Department in Khaira v. Khaira that the statutory temporary maintenance formula is intended to include the portion of marital residence carrying costs attributable to the nonmonied spouse.

In the November 5, 2012 decision in Liebman v. Liebman, Justice Jackman Brown balanced the factors presented by directing the husband to continue to make the marital residence carrying charge payments, but deducting the full amount of those charges from the presumptive maintenance formula.

The wife had sought an award of temporary maintenance based upon husband’s 2011 W-2 income. The wife also asked that in addition to the calculated temporary maintenance sum, the husband should be directed to continue to pay the maintenance, mortgage and carrying charges on the marital residence.

The Court found that the presumptive temporary maintenance award would be $6,337.70 monthly. However, under the facts presented, Justice Jackman Brown found that the presumptive award would be unjust or inappropriate. Specifically, the Court adjusted the presumptive temporary maintenance award after considering factor: (q) any other factor which the court shall expressly find to be just and proper.

The Court noted that the statute is silent regarding whether the Court shall order the presumptive maintenance award in proceedings in which the payor spouse has agreed or is directed to maintain the mortgage and/or carrying charges on the marital residence. In Liebman, it was undisputed that the husband had been paying the carrying charges, including the mortgage, maintenance and insurance, in the sum of $1739.91 monthly.

The Court deducted the sum of $1,739.91 from the husband’s presumptive monthly temporary maintenance obligation $6,337.70, and awarded the wife $4,597.79 monthly. The Court also directed the husband to continue to pay the mortgage, maintenance and insurance on the marital residence.Continue Reading Temporary Maintenance Awards and Marital Residence Carrying Charges: Justice Jackman Brown Weighs In

canceled stamp.jpgIs it proper, at the conclusion of a divorce action, to offset pendente lite child support arrears against the support obligor’s right to receive a share of the custodial parent’s pension or other deferred compensation plan assets?

That question was apparently answered in the affirmative by the Appellate Division, Third Department, in its October…

College Fund 4.jpgIn last week’s blog, I discussed the extraordinary analysis undertaken by Monroe County Supreme Court Justice Richard A. Dollinger in L.L. v. R.L. in order to apply the agreement made by parents at the time of their divorce to finance their children’s college education “according to their respective means at the time the child…

College Fund 2.jpg“It depends on what the meaning of the word ‘is’ is.” Bill Clinton, August 17, 1998

“What does “means” mean?” Justice Richard A. Dollinger, June 22, 2012

By statute, a court may direct a parent to contribute to a child’s education, even in the absence of special circumstances or a voluntary agreement of the parties. Under the Child Support Standards Act (D.R.L. 240[1-b][c][7] and F.C.A. 413[c][7]) the court may award educational expenses:

Where the court determines, having regard for the circumstances of the case and of the respective parties and in the best interests of the child, and as justice requires, that the present or future provision of post-secondary, private, special, or enriched education for the child is appropriate.

In my May 9, 2012 blog, I discussed the April 24, 2012 decision in Tishman v. Bogatin, in which the Appellate Division, First Department, held that a parent’s contribution to a child’s college education would not necessarily be limited to a portion of the expense to attend a campus within the State University of New York system: the “SUNY cap.” In making a decision, there is no burden placed on a parent to show that the child’s needs cannot be met adequately at a SUNY college. “Whether to impose a SUNY cap is to be determined on a case-by-case basis, considering the parties’ means and the child’s educational needs.”

In its July 25, 2012 decision in Lynn v Kroenung, the Second Department reaffirmed that unlike the obligation to provide support for a child’s basic needs, support for a child’s college education is not mandatory. Instead, absent a voluntary agreement, whether a parent is obligated to contribute to a child’s college education is “dependent upon the exercise of the court’s discretion, and an award will be made only “as justice requires.”

In L.L. v. R.L., Monroe County Supreme Court Justice Richard A. Dollinger was compelled to determine what “means” meant in a couple’s separation agreement. That agreement provided that the parents would finance the children’s college education “according to their respective means at the time the child attends college, after grants and scholarships have been taken into consideration.”

In 2011, the parties’ oldest son applied, was accepted, and enrolled at Penn State (Harrisburg). Before he left for school, the mother moved for an allocation of the college expenses. In a prior decision, Justice Dollinger reserved this issue. When the couple’s second son recently applied to Hofstra (stated cost $33,000 annually), the mother sought an allocation of those expenses as well.

Justice Dollinger clarified the issue he would be deciding:

This Court is not deciding what the parents should contribute to their children’s college education expenses. The agreement clearly indicates that both parents would contribute something if they had the means to do so. The only issues before the court are questions of contract interpretation and contractual rights: what the parents agreed they would contribute, what obligation may be enforced against either parent under the agreement, and whether either party has, to date, breached their obligations thereunder.Continue Reading The Divorced Parent's Obligation to Pay for College: It Depends What "Means" Means

Focus.jpgUnder a 2004 stipulation of settlement that was incorporated, but survived the entry of the judgment of divorce that ended the parties seven-year marriage, the ex-husband/father was to pay $250,000.00 in annual maintenance and $140,000.00 in annual child support emancipated.

The stipulation further provided that the father would be able to apply for a reduction of his child support and spousal maintenance obligations in the event of an “involuntary, substantial, adverse change” in income. Moreover, if a downward modification were to be granted, the parties’ stipulation would be deemed amended to the extent of any relief afforded. The particular provision provided:

Anything herein to the contrary notwithstanding, in the event of an involuntary, substantial, adverse change in the Husband’s income, including income produced by his assets (such as involuntary loss of employment), he shall have the right to make application to a court of competent jurisdiction, which must include a sworn statement of net worth, for an appropriate modification of child-related support and/or spousal maintenance obligations hereunder, and if granted, the parties’ Agreement shall be deemed amended to the extent of any relief afforded on such application.

The September 10, 2012 decision of Westchester County Supreme Court Justice John P. Colangelo in Mark P. v. Teresa P., resolved such an application to reduce his support obligations. The father based his application on the reduction of his annual income from $3.3 million in 2004, when the stipulation was signed to $651,000.00 in 2011, and an anticipated $251,000.00 in 2012. The father, a securities trader, claimed that the reduction in his income was due to “changes in the securities industry, the economy and a general decline in securities’ sales volume . . . .”

The ex-wife/mother contended that the agreement’s support reduction paragraph should be read only to provide the threshold setting the father’s right to apply for a support reduction, but not necessarily to obtain such a reduction. The mother claimed that the provision did not alter the standards for granting a reduction in child support (a substantial unanticipated an unreasonable change in circumstances) or spousal maintenance (extreme hardship).

Justice Colangelo agreed with the mother, and denied relief to the father. Although the Court acknowledged that the parties had “sought” in their stipulation to provide a “less restrictive standard than that provided by prevailing law,” the Court held that the any easing of the standard was “more circumscribed” than the father argued. Justice Colangelo noted that “conspicuous by its absence is any standard to apply once the threshold to apply for reduction was met.” Thus, the Court would apply “well established principles of whether a reduction in amount is warranted.” The father failed to meet that standard.

Justice Colangelo discussed several decisions which honored agreement provisions that only lowered the threshold to apply for relief, but also held that meeting the threshold did not mandate a reduction.

Only by an explicit agreement . . . may the parties successfully substitute a different standard for support payment reduction from the well-worn standards established by statutory and case law.

Continue Reading Divorce Stipulations That Change Court Standards Must Be Precise