What is the effect of a divorce settlement stipulation provision, incorporated in the judgment of divorce, that calls for a specified reduction in child support upon the emancipation of one of the children of the parties?
The fact pattern is almost routine. For example, say the parties have three children, 14, 17 and 19. Their divorce settlement tracks the C.S.S.A. Upon the first emancipation (presumably when the 19-year old turns 21, or, perhaps graduates college according to the definition of emancipation in the agreement), the stipulation provides that the child support obligation will go from $2,900 per month to $2,500 per month (tracking the reduction in the formula obligation from 29% for three children to 25% for two children). Assume the full stipulation is incorporated by reference into the parties’ divorce judgment.
Continuing the example, assume that upon the first emancipation, the child support payor in fact reduces his/her payment from $2900 to $2500, but does not have that reduction established by a new court order. A year later, the support recipient goes into court to seek 12 months of $400/per/month arrears. What happens?
Consider last month’s decision of the Appellate Division, Second Department, in Beckmann v. Bedckmann. There, the parties’ 2012 divorce judgment incorporated, but did not merge with, their 2011 stipulation of settlement. The parties had agreed that the husband would pay $700 semi-monthly in basic child support for their two children. In April 2013, the parties’ daughter became emancipated under the terms of the stipulation, and shortly thereafter, the husband reduced his child support payments from $700 to $476 semi-monthly [I am going to dangerously assume that an agreement that defined emancipation would also provide what was to happen on emancipation].
The ex-wife, then, commenced a proceeding in the Family Court seeking to enforce the husband’s child support obligation. On September 23, 2013, the Family Court issued a temporary order of support directing the husband to pay $405 semi-monthly for the parties’ unemancipated son ($71 semi-monthly less than the reduced sum the husband was paying). Thereafter, the wife withdrew her Family Court petition and moved in the Supreme Court, inter alia, for an upward modification of the husband’s basic child support obligation for their son to $717.84 semi-monthly and for child support arrears that had accrued since the date their daughter became emancipated. The husband cross-moved for a downward modification of his child support obligation.
Suffolk County Supreme Court Justice John J. Leo granted that branch of the wife’s motion for child support arrears, but only to the extent of directing the husband to pay child support arrears that had accrued since September 23, 2013, the date of the Family Court’s temporary order of support. Justice Leo also granted the husband’s cross-motion for a downward modification of his child support obligation. The wife appealed.
The Appellate Division modified that order by deleting the provision thereof directing the husband to pay child support arrears that had accrued only since the date of the Family Court temporary order of support.
Given the express terms of the parties’ stipulation and the fact that their son remained unemancipated, their daughter’s emancipation in April 2013 did not automatically reduce the unallocated amount of child support owed by the defendant, and he was required to seek appropriate relief by application to the court for a modification of child support payments.
Here, the husband only sought appropriate relief by application to the court for a modification of his child support payments when he made his cross-motion before Justice Leo.
The Second Department held, however, that Justice Leo erred with regard to its determination of child support arrears. It held that a court has no discretion to reduce or cancel arrears of child support which accrue before an application for downward modification of the child support obligation.
Here, the Second Department noted, the husband reduced his child support payments in or about May 2013 and did not seek a downward modification until April 2014, when he filed his cross-motion in the Supreme Court. The September 23, 2013 Family Court temporary order of support only set the husband’s child support obligation at $405 semi-monthly going forward; it did not erase the child support arrears already accrued by the husband. Consequently, the husband was obligated to pay arrears that accrued from the date he reduced his child support payments in May 2013 to the date he cross-moved, in effect, for a downward modification. The Second Department remitted the matter to the Supreme Court, Suffolk County, for a new determination of the amount of child support arrears owed to the wife.
Comment: The Second Department appear to rely upon a line of cases that, almost exclusively, dealt with initial child support orders that determined by the court, and not by the parties; that simply declared the support obligation at the time of the ruling, and did not, by so-ordered stipulation, declare what is to happen upon the emancipation of the child. However, there is one or more case that applied the rule where there was such a stipulation.
Applying the rule requiring a new court proceeding upon every emancipation negates the language of the divorce judgment that incorporates and orders all the provisions of the divorce settlement stipulation. Is not the divorce court empowered to order such a provision? Do we really need to burden the courts, when the divorce court has already dealt with the issue? Is not the function of a divorce settlement in part to keep the parties out of court by providing what will happen upon anticipated future contingencies?
Finally, the Second Department did not specifically address the effect of the Family Court temporary support or in the proceeding the wife began, and then discontinued, presumably when she got a ruling she didn’t like. When remitting the matter for a redetermination of arrears accruing from the date of husband’s reduction in payments, did the appellate court declare that the Family Court order should be disregarded? Did the wife’s withdrawal of her petition deprive the temporary order of any effect?
Karyn A. Villar, PLLC, of Hauppauge, represented the husband. The wife was pro se.