Using the state’s Child Support Enforcement Services can have unintended results. Having support payments made through a Support Collection Unit triggers a cost-of-living adjustment procedure that may result in a significant change to the court-ordered support obligations to which parties had agreed.

Consider the September 26, 2018 decision of the Appellate Division, Second Department, in Murray v. Murray. There, the former spouses in their 2001 surviving divorce settlement agreement had agreed to share joint custody of their children, with the mother having physical custody.

The parties had opted out of the basic child support obligations of the Child Support Standards Act (C.S.S.A.), with the father agreeing to pay a certain sum for child support from August 1, 2001, through January 31, 2006. The parties also executed a rider to their stipulation, in which they agreed that beginning on February 1, 2006, until both children were emancipated, the father would pay child support to the mother based on the C.S.S.A., but using the parties’ total combined income for the year 2005.

In an 2009 order, the Family Court, upon the parties’ consent, directed the father to pay $740.56 per week in child support for both children through the Support Collection Unit (the SCU).

In March 2017, the SCU notified the parties of the presumptive cost-of-living adjustment (COLA) to the father’s child support obligation authorized by Family Court Act §413-a. That would increase the father’s weekly child support obligation to $822.00.

The mother filed an objection to the cost of living adjustment pursuant to Family Court Act §413-a(3), requiring that a hearing be held for a redetermination under the C.S.S.A. After that hearing, Suffolk County Support Magistrate Aletha V. Fields, in effect, vacated the COLA increase. At the time, the subject child was 20 years old and entering her third year of college. Upon recalculating the amount of child support, Magistrate Fields fixed the father’s child support obligation at $360.00 per week. The Support Magistrate found that although the parties’ combined parental income was $371,697.08, the mother failed to set forth a basis upon which to apply the statutory child support percentage to any income above the statutory cap of $143,000.00.

The mother filed objections to the Support Magistrate’s order. However, Family Court Judge Anthony S. Senft, Jr., denied the mother’s objections. The mother appealed.

The Second Department affirmed. It first noted that although the parties agreed in their stipulation to opt out of the provisions of the C.S.S.A., after the mother filed an objection to the COLA, the Support Magistrate was required, pursuant to Family Court Act §413-a, to conduct a de novo review of the father’s support obligation under the C.S.S.A.

Citing Matter of Tompkins County Support Collection Unit v. Chamberlin, 99 N.Y.2d 328 (2003), the appellate court noted, the review and adjustment procedures set forth in Family Court Act §413-a “apply equally to orders based on an agreement and those based solely on the child support standards.” Parties to an agreement that deviates from the guidelines set forth in the C.S.S.A. “may demonstrate why, in light of the agreement, it would be unjust or inappropriate to apply the guideline amounts.” Accordingly, in recalculating the father’s child support obligation, the Support Magistrate properly considered the guidelines set forth in the C.S.S.A.

The Second Department noted that the C.S.S.A. provides that “when the parties’ combined income is more than the statutory cap — in this case, $143,000 — “the court has the discretion to cap the support obligation at an amount based on the statutory cap or order child support above the statutory cap, based on the factors set forth in Family Court Act §413(1)(f) and/or the child support percentage set forth in Family Court Act § 413(1)(c)(3)”.

Here, it was held the Support Magistrate providently exercised her discretion in applying the child support percentage to $143,000 of the parties’ combined income. The mother failed to demonstrate why, in light of provisions of the stipulation and the rider, it was unjust or inappropriate for the Support Magistrate to decline to apply the child support percentage to the parties’ combined income over the statutory cap.

Elena L. Greenberg, of Fass & Greenberg, LLP, of Garden City, counsel for the father, warned, “Be careful before you object to a COLA …  There are risks. It is a way to circumvent modification procedure.”

Jeffrey S. Horn and Philip Parlante, of Horn & Horn, of Huntington, represented the mother.