In its May 25, 2016 decision in Fitzpatrick v. Fitzpatrick, the Appellate Division, Second Department, affirmed the denial of an ex-wife’s application to enforce a divorce settlement provision that called for an automatic increase in child support upon the ex-husband’s default in any other obligation of that settlement.
The parties entered into that separation
When a divorce settlement contemplates paying child support throughout four years of college, what happens when the child graduates in three?
The statutory obligation to support a child ends at the child’s 21st birthday. It is common with divorce settlements to extend child support beyond the 21st birthday if the child is continuing to attend college on a full-time basis. However, defining when the periodic support obligation will end is not always made clear.
Take the March 30, 2016 decision of the Appellate Division, Second Department, in Fleming v. Fleming. The parties’ divorce stipulation of settlement required the father to pay periodic child support until the children reached the age of 21, or the completion of “four (4) academic years of college,” whichever occurred last, but in no event beyond the school year of the child’s 23rd birthday.
However, the parties’ daughter graduated from college after only three years of study, one month after her 21st birthday. The father stopped paying child support. The daughter went on to graduate school.
The mother moved to enforce the stipulation’s obligation for the father to pay periodic child support. She asserted that the stipulation required the father to continue paying child support during their daughter’s first year of graduate school. Suffolk County Supreme Court Justice Stephen M. Behar granted the mother’s motion, finding that the child had completed only three academic years of college. Justice Behar directed the father to continue paying child support until the child completed “four (4) full academic years of college, or until the child’s 23rd birthday, whichever occurs first.”
The Second Department reversed.
When interpreting a contract, such as a separation agreement, the court should arrive at a construction that will give fair meaning to all of the language employed by the parties to reach a practical interpretation of the expressions of the parties so that their reasonable expectations will be realized.
Continue Reading Support When the Child Graduates College in Three Years
A signature by a notary is not a proper acknowledgment. As a result “Promissory Note” deemed a postnuptial agreement was unenforceable. So held the Appellate Division, Second Department, in its March 2, 2016 decision in Ballesteros v. Ballesteros.
In this case, the parties were married on July 27, 2008. Prior to their marriage, on
A court will not provide for a reduction in child support upon the emancipation of the elder of two children when the parties’ divorce settlement stipulation, itself, does not provide for one. So held the Appellate Division, First Department, in its 3-2 December 29, 2015 decision in Schulman v. Miller.
That settlement stipulation required the husband to pay unallocated periodic child support for the parties’ two children, plus cost of living adjustments, as well as other expenses of each child, including education and college. It did not provide for the reduction or recalculation of the husband’s child support obligation upon the emancipation of the older child. The agreement did not allocate the husband’s child support obligation as between the children, nor provide a formula for a reduction in the event of one child’s emancipation.
Affirming the order of Supreme Court, New York County Justice Lori S. Sattler, the appellate court noted that the settlement stipulation did provide for a termination or reduction of certain of the husband’s financial obligations upon the happening of specified events, including, for example, his obligation to pay maintenance to the wife, his obligation to maintain medical insurance for each child, payments for car service, and the like. Thus, the settlement provision concerning medical insurance explicitly stated that the husband “shall have the right to terminate such coverage for either Child at the time she becomes emancipated.” The parties’ stipulation of settlement was an exhaustive, 62-page document. Both parties were represented by counsel during its negotiation (indeed, the husband himself is an experienced attorney).Continue Reading Absent Provision in Divorce Agreement, No Reduction in Child Support on Emancipation of Elder Child
In its August 19, 2015 decision in Hof v. Hof, the Second Department, almost matter-of-factly, addressed a number of pendente lite and pre-nuptial agreement issues.
To begin, the Court affirmed the determination of Suffolk County Supreme Court Justice John B. Collins, that after a hearing upheld the parties’ prenuptial agreement. By that agreement,
Sentencing a father (a police officer) to 15 days in jail for sending abusive e-mails to the mother, Supreme Court, Putnam County Justice Victor G. Grossman attempted to stop the war between divorcing parents.
Charging the parties with acting more like children, throwing tantrums, teasing and name-calling, Justice Grossman, in his decision in L.T. v. K.T. noted that both parents behaved like preschoolers. Unfortunately, the Court could send the parties to their rooms. The parties’ three children have two parents whose embarrassing behavior has set a horrible example. the behavior of both parties was “all the more disappointing when one considers the parties should know better.” The father was a police officer, who had been trained to defuse difficult situations. The mother had a Master’s Degree in Psychology. Thankfully, the children had multiple outlets where they can see responsible adult behavior.
The Court also blamed the lawyers, observing “how counsel for each of the parties has personalized the conflict to the point where they are incapable of communicating effectively beyond a litigating posture, to promote their clients’ interests.”Continue Reading Co-parenting: Flexibility Cannot Be Ordered; Abusive E-mails Warrant Jail
Among their powers notaries public administer oaths and receive and certify acknowledgments or proof of deeds and other instruments in writing (Executive Law §135). An acknowledgement provides proof of the identity of the purported signatory of a document. It reads (Real Property Law §309-a):
On the ____ day of ____ in the year ____ before me, the undersigned, personally appeared ____, personally known to me or proved to me on the basis of satisfactory evidence to be the individual(s) whose name(s) is (are) subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their capacity(ies), and that by his/her/their signature(s) on the instrument, the individual(s), or the person upon behalf of which the individual(s) acted, executed the instrument.
Domestic Relations Law §236(B)(3) provides that an agreement made before or during the marriage, shall be valid and enforceable in a matrimonial action if such agreement is in writing, subscribed by the parties, and acknowledged . . . .”
Parties often will resolve their divorce actions through with Separation Agreements or Stipulations of Settlements, the terms of which are incorporated in their Judgment of Divorce. Those agreements and stipulations often survive the entry of the Judgment of Divorce as independently enforceable contracts.
In his June 10, 2015 decision in Defilippi v. Defillipi, Westchester County Supreme Court Justice Paul I. Marx, held that agreements that are entered within pending divorce actions and conclude those actions need not be acknowledged. They must only meet the requirements of C.P.L.R. 2104 and, if not entered in open court, be written, signed and filed with the county clerk.Continue Reading Stipulations Resolving Divorce Actions Need Not Be Acknowledged
In contrast to its decision in Zaratzian, the subject of yesterday’s blog post, the Second Department, in Eagar v. Suchan, held the same day that a father was entitled to receive child support from a mother after their two children moved in with him.
In Eagar, the parties’ 1999 Settlement Agreement which was incorporated, but not merged into their judgment of divorce, contained separate provisions for child support and the payment of college expenses for the children. At the time, the then 7- and 5-year old sons of the parties lived with their mother.
After the parties’ two children began to reside with the father, he petitioned to terminate his child support obligation.
After a hearing, Suffolk County Support Magistrate (and former Judge) Barbara Lynaugh granted the father’s petition. She determined that the parties’ older child, then 21, was emancipated, and directed the mother to pay child support to the father for the parties’ younger child, then 19, in the sum of $344 per week. Family Court Judge Martha L. Luft denied the mother’s objections to the ruling.
The Appellate Division, Second Department affirmed. It held that Magistrate Lynaugh properly exercised her discretion when applying the Child Support Standards Act formula percentage to the combined parental income in excess of the statutory cap. “Here, the Support Magistrate properly articulated her reasons for applying the statutory percentages to parental income over the statutory cap, and her determination was not an improvident exercise of discretion.” It appears that the mother’s C.S.S.A.-adjusted annual income was approximately $105,000.00, which (applying the 17% formula) resulted in a $344.00 per week award.
The appellate court did not discuss the language of the parties’ Stipulation of Settlement, or why that language allowed for an affirmative award to the father.Continue Reading “I’m Moving In With Daddy”: The Child Support Perspective (Part II)
Among the hardest jobs of the matrimonial lawyer is to draft divorce settlement agreements that anticipate post-divorce events and then resolve them with precision. Two May 20, 2015 decisions of the Second Department highlight just how hard those jobs can be when it comes dealing with the child who switches his or her primary residence.
In Zaratzian v. Abadir, the appellate court affirmed a decision of Westchester County Supreme Court Justice John P. Colangelo that applied one couple’s Agreement to resolve their conflict in a manner neither party may have wanted.
Under their 2006 divorce settlement Agreement, the parties, both medical doctors, agreed to equally-shared time with their three children, and older daughter, then age 12, and 10 and 6-year old sons. Following the father’s remarriage in 2008 and the pregnancy of his new wife, the time-sharing arrangement broke down. The daughter resided only with the mother, the older son with the father and the younger son continuing to switch. Subsequent Family Court custody proceedings resulted in both boys living with their father.
Under the Separation Agreement, the father had agreed to pay the mother $1,500 per month in maintenance until the emancipation of one of the children. Until then, the father would pay an additional $1,500 per month in child support for all three unemancipated children. Upon the emancipation of one child, maintenance would stop, but child support would be increased to $1,750 per month. Upon the second emancipation, child support would be reduced to $1,000 per month.
The support Article of the Agreement contained the following typewritten provision:
The Agreement defined various emancipation events, including:
The emancipation Article also contained the following handwritten provision:
Following the Family Court proceedings, the mother moved in Supreme Court for an order relating to the payment of private school tuition for the daughter (she later asked for child support for the daughter computed under the Child Support Standards Act). The father cross-moved for an order requiring the mother to pay him C.S.S.A.-computed child support for the parties’ two sons.Continue Reading "I'm Moving In With Daddy": The Child Support Perspective (Part I)
At the point the literal construction of a contract leads to an absurd result, the actual words should yield to logic and the mutual understanding of the parties. The First Department held otherwise in its March 19, 2015 decision in Buckingham v. Buckingham when depriving the former wife of a 20% share of the stock in a publicly-held company the husband sold for $7,279,117.62.
In this case, under a prenuptial agreement signed eight days before the parties’ marriage, the wife was to receive a percentage of the post-marital appreciation from the proceeds of the sale of that company, Mobile Streams PLC (“MS”).
The husband is the founder and CEO of that company and, at the time of the prenuptial agreement, had a majority interest. MS retails Mobile Content including Apps, Games, eBooks, Music and Videos globally through mobile carrier partners and its Appitalism.com applications storefront.
The agreement stated:
Simon owns approximately 55.83% of the issued and outstanding shares of [Mobile Streams] [ MS’]. If MS or any of its subsidiaries or related companies are sold, and the sale takes place after the occurrence of an Operative Event, and proceeds of sale are not otherwise invested or reinvested in another business enterprise, but rather Simon retains the proceeds for himself and provided the parties are married for five (5) years or more, Simon, will place the following percentages of the net proceeds less the value of the MS shares on the date of marriage, in an account established in Nisha’s sole name which shall be deemed Nisha’s Separate Property:
(i) if the parties are married for 5 or more years – 20%; or
(ii) if the parties are married for 10 or more years – 25%; or
(iii) if the parties are married 15 or more years – 30%; or
(iv) if the parties are married for 20 or more years – 40%; or
(v) if the parties are married for 25 or more years – 50%.
Continue Reading Marital Agreements: Balancing The Literal With The Absurd