Enforcement of Support and Orders

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.


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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

Update: In a decision issued December 6, 2012, the Appellate Division, Third Department, disbarred Mr. Melendez for his failure to disclose to the Committee on Professional Standards his child support arrears and other related misconduct:

Respondent is guilty of very serious professional misconduct. He exhibited a lack of candor on his application for admission.

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The May 5, 2011 decision of the Appellate Division Third Department in Munson v. Fanning, highlights the need for difficult discussions and prioritization before taking life-altering steps. It is also another call for the expanded use of the Collaborative Law Process.

In this case, the parties’ 12-year old daughter had been born after her parents had separated and divorced. The mother sought and permission to move with the child to California to join her new husband who had taken a new job. Saratoga Family Court Judge Courtenay W. Hall denied that relief, but revised the father’s visitation schedule to allow the mother to join her husband for extended periods during school recesses.

The appellate court reviewed whether the mother met her burden of proving by a preponderance of the credible evidence that the relocation was in the child’s best interests. Quoting the 1996 landmark decision of the Court of Appeals in Tropea v. Tropea, 87 N.Y.2d 727, 642 N.Y.S.2d 575, the court stated:

The factors to be considered in making such a determination include “each parent’s reasons for seeking or opposing the move, the quality of the relationships between the child and the custodial and noncustodial parents, the impact of the move on the quantity and quality of the child’s future contact with the noncustodial parent, the degree to which the custodial parent’s and child’s life may be enhanced economically, emotionally and educationally by the move, and the feasibility of preserving the relationship between the noncustodial parent and child through suitable visitation arrangements.”

The court recognized the healthy relationship the daughter developed the mother’s new husband, as well as her other children, all of whom were to reside in California. The step-father’s new job in California would allow her to stay at home and raise her children. The attorney for the daughter (formerly called the Law Guardian) supported the relocation.


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