What are the support rights and obligations of a couple who have habitually lived often the generosity of their parents?
The divorcing couple have been married for 20 years and have 3 children. Throughout the marriage, they enjoyed a “substantial” lifestyle: a comfortable home, country club and health club memberships, annual vacations in resort communities including skiing in Colorado and winters in Florida.
However, that lifestyle always exceeded the couple’s earned income. The husband had been employed as a photographer in a business owned by his father, but the business stalled and was closed in the last 18 months. The husband claimed $8,470 in annual income as of July 2011. Although the husband held two undergraduate degrees, he never earned significant sums, with annual earnings in 2000-2009 approximating $35,000. The husband provided no evidence of his efforts to find employment, except a “meek statement” of trying to find work as a self-employed photographer.
In considering his obligation to support his family, this court declines to give any significant credence to the husband’s employment efforts. Again, the only reasonable conclusion is that the husband’s parents have financed most of, if not all, the family’s expenses for at least two years, if not significantly longer.
The wife, who also held an undergraduate degree, earned $25,000 annually from her employment.
Nonetheless, the husband in his statement of net worth listed expenses of $94,812 annually. The wife estimated expenses at more than $107,000 annually. Moreover, neither party’s budget included any expenses for the education of the oldest child, now attending college.
Justice Dollinger noted that he had broad discretion to impute income to both parents in fashioning a child support award. A parent’s child support obligation is calculated not on the parent’s current financial condition, but instead by the parent’s ability to provide support. The Court may impute income based on a parent’s prior employment experience as well as a parent’s future earning potential in light of that party’s educational background.
Moreover, New York law gives this court “considerable discretion to impute income to a parent where the parent receives money, goods, or services from a relative or friend.” DRL § 240 (1-b)(b)(5)(iv)(D); FCA § (1)(b)(5)(iv)(D). A plethora of opinions provides a solid foundation to impute income to the husband based on the financial contributions from his parents (whether described by the husband as “gifts” or “loans”).
Given this landscape of judicial authority, this court must impute income to the husband based on his employment history and his parental support; and there is an equally compelling command to impute income to the wife based on her income and family support.
Based upon his earnings over the past decade, Justice Dollinger imputed $35,000 in annual employment income to the husband. Moreover, based on the history of the continual influx of financial assistance to the husband through his parents, the husband was determined to have annual financial assistance from his parents in an amount of $75,000.
This court having found a multi-year pattern of parental subsidy for the husband, imputes the amount of that contribution to the husband for the purposes of evaluating his income and resources available for purposes of support of his wife and children.
Moreover, the Court held that the husband’s $143,000 brokerage account, funded by annual gifts from his mother, and a $32,000 IRA were available to pay support obligations.
Although the wife had received gifts from her parents throughout the marriage, they were not substantial or regular enough for the Court to impute any periodic gifts to the wife as income for paying family expenses.
Based upon the foregoing, Justice Dollinger applied the temporary maintenance formula to his imputed annual income of $110,000 and awarded the wife some $26,000 in annual temporary maintenance. Using the C.S.S.A. formula, with appropriate adjustments, Justice Dollinger ordered some $22,000 in annual temporary child support.
Justice Dollinger acknowledged that the husband did not have the income to support these payments. However, the husband did have assets to pay these expenses during the pendency of the divorce.
It is clear that, when his expenses have mounted, his parents have paid those expenses. In the absence of a job that will generate enough income, this court acknowledges that the husband may have to turn to his parents for the resources to pay these obligations. … This court cannot permit the husband to now shut off his family support, if the impact is to reduce his statutory obligations to his wife and avoid his child support obligations.
The parties were represented by Gregg M. Tirone, Esq., and by Michael T. Hagelberg, Esq., both