In its decision this month in Vaysburd v. Vaysburd, the Appellate Division Second Department reminded us that once a parenting stipulation or order is entered, child support will not be affected until the stipulation or order is modified. This is true, even if the support award is made in the same divorce action in which the parenting stipulation was entered.
The couple, married in 1997 and had a son and a daughter. They filed for divorce in 2008. In March 2010 the parties executed a custody and parental access stipulation, agreeing on joint legal custody with residential custody going to the mother.
At some point while the divorce action remained pending, the parties’ son moved in with the father. However, the father did not move to modify the stipulation. The parties agreed to submit the child support issue on papers. The father claimed that his child support obligation should be calculated based on the statutory rate for one child (17%) instead of two (25%), as the son then lived with him.
In a 2019 order, Supreme Court Kings County Justice Eric I. Prus, rejected the father’s argument and computed the $2,096 per month child support award based on 25%. The father appealed.
The Second Department affirmed. The Court rejected the father’s contention that since the parties’ son has been living with him the court should have applied the statutory rate of 17%. Instead, the Court held that, “Without a modification of custody, the [father’s] obligation remains the same despite a de facto change of custody of the parties’ son.”