Count the overnights. “Legal” custody or decision-making power does not matter. Child Support is only payable to the parent with the children the majority of the overnights. If overnights are equally shared, the parent with the higher income is deemed to be the noncustodial parent for C.S.S.A. purposes.
Such is the rule of law made clear in two recent Appellate Division cases. In its June 28, 2013 decision in Leonard v. Leonard, the Fourth Department held that despite  the father having sole legal custody, as parenting time was equally shared and the father had the higher income, the father would be deemed the noncustodial parent and obligated to pay child support.

In Rubin v. Della Salla, an April 18, 2013 decision of the First Department, where each parent had spheres of decision-making, it was held that the father with whom the child spent 56% of the overnights could not, as a matter of law, be ordered to pay child support under the C.S.S.A.

In Leonard, upheld the decision of Monroe County Supreme Court J.H.O. to award the husband sole legal custody. The wife sought joint legal custody, bu the Fourth Department agreed that the parents’ acrimonious relationship and inability to communicate effectively with respect to the needs and activities of the children made joint custody not feasible. Moreover, the J.H.O. did not abuse his discretion in failing to split decision-making “zones of influence.”

The Fourth Department, however, held that it was error for the J.H.O. to award child support to the husband. Child support should have been awarded to the wife. As the residency arrangement was shared, and neither parent had the children for a majority of the time, the party with the higher income was to be deemed to be the noncustodial parent for purposes of child support.

Here, the residency schedule affords the parties equal time with the children. Inasmuch as the husband’s income exceeded that of the wife (at the time of trial, the husband earning $134,924.48 annually, with the J.H.O. imputing income of $25,000 to the wife), the husband was the “noncustodial” parent. As such, he must pay child support to the wife.

The Fourth Department acknowledged that the authority presented by the wife involved awards of joint legal custody, whereas the husband, here, was awarded sole legal custody. That fact, however, should not affect the child support determination.

Although the award of sole legal custody to plaintiff allows him to make important decisions in the children’s lives, that decision-making authority does not increase his child-related costs. A parent’s child-related costs are dictated by the amount of time he or she spends with the children.

Continue Reading Parenting Time, Not Legal Custody, Determines Entitlement to Child Support

Particularly in light of the allegations that the mother threatened to retaliate against her 14-year old daughter’s testimony supporting the father, it was an abuse of discretion for the trial Judge to require the daughter to testify in open court in this custody modification proceeding. The girl should have been interviewed by the judge in chambers without her parents and their lawyers being present.

That sentiment was noted by the Appellate Division, Third Department, in its June 27, 2013 decision in Casarotti v. Casarotti that affirmed Madison County Family Court Judge Biagio DiStefano‘s order changing primary physical custody of the girl from the mother’s residence in New York to the residence of her father in California, despite the presence of the daughter’s 18- and 20-year old siblings in New York.

In this case, the parties were the divorced parents of two daughters (born in 1992 and 1998) and a son (born in 1994). The younger daughter was the only subject of this proceeding.

The family had lived together in northern California until the parties’ separation in 2000. At that time, the mother moved with the three children to New York. The parties later consented to joint custody of the children in a stipulation that was incorporated, but not merged into their 2007 judgment of divorce. In accordance with the stipulation, the mother maintained primary physical custody of the children in New York. The father, who remained in California, was granted liberal parenting time during weekends, winter holidays and summer vacations.

In July 2012, the father commenced this custody modification proceeding, seeking primary physical custody of the child. He alleged that the two older children had moved out of the mother’s house, the mother was emotionally abusive to the youngest child, and that the child now wanted to live with him in California.

Judge DiStefano held a hearing at which the parties, the 14-year-old child and her 20-year-old sister testified. Judge DiStefano granted the father’s petition and awarded him primary physical custody, while otherwise maintaining joint custody.

Continue Reading 14-Year-Old Daughter Should Not Have Been Made to Testify in Front of Parents in Custody Modification Proceeding

Whether the payment of union dues is to be deducted for the purpose of determining C.S.S.A. income is to be decided on a case by case basis. Rejecting the deduction in S.H. v. S.H., a June 17, 2013 opinion withdrawn from publication, Supreme Court Clinton County Acting Justice Timothy J. Lawliss held that the father failed to meet his burden to show that those dues did not reduce his personal expenses.

In this divorce action, the father was employed at a union plant and paid monthly union dues to the United Steel Workers.

This opinion concerned only whether or not union dues paid by the father should be deducted from the father’s gross income prior to calculating the father’s income for child support purposes.

Domestic Relations Law §240(1-b) sets forth the methodology the Court must follow to determine the non-custodial parent’s child support obligation. Pursuant to D.R.L. §240(1-b)(b)(5), income for support purposes shall mean, but shall not be limited to, the sum of the amounts determined by the application of clauses (i), (ii), (iii), (iv), (v) and (vi) of that sub-paragraph, reduced by the amount determined by the application of clause (vii) of that sub-paragraph.

Union dues are not a specifically allowed deduction under D.R.L. §240(1-b)(b)(5)(vii), nor does the subsection contain a catch all “other” category leaving deductibility to the Court’s discretion. The question before the Court, then, was whether or not union dues qualify as a deduction under the only possible category: “unreimbursed employee business expenses except to the extent said expenses reduce personal expenditures” (subsection [vii][A]).

Continue Reading Union Dues Do Not, Here, Reduce Income For C.S.S.A. Purposes

Requiring the wife to pay the carrying charges of the marital residence pendente lite was proper in light of the awards to the wife of temporary maintenance and child support. So held the the Appellate Division, Second Department, in its June 12, 2013 decision in Fini v. Fini, affirming the order of Orange County Supreme Court Justice Lawrence Ecker.

Moreover, Justice Ecker properly based his $7,500 per month temporary maintenance award upon the wife’s needs and the standard of living of the parties prior to commencement of the divorce action as the husband’s “evidence of his gross income was insufficient, and was not reconcilable with his prior spending habits or the parties’ standard of living.”

On appeal, the husband failed to demonstrate that the pendente lite award left him unable to meet his financial obligations. There was no basis in the record to disturb the award of temporary maintenance. Any perceived inequities would best be remedied by a speedy trial.

The husband was represented by William J. Larkin III of Larkin, Axelrod, Ingrassia & Tetenbaum, LLP, of Newburgh. The wife was represented by Adam W. Schneid of Most & Schneid, P.C., of White Plains.

A maternal grandmother, who claimed that her granddaughter’s injuries were not caused by her parents, but the result of a voodoo ritual, was denied custody and visitation by the Appellate Division, First Department. Its June 13, 2013 decision in In re Antoinette McK affirmed the order of New York County Family Court Judge Rhoda J. Cohen.

Judge Cohen had implicitly found that the grandmother had standing to pursue her claim for custody of and/or visitation with the child. However, Judge Cohen had found that an award of custody and/or visitation to the grandmother was not in the best interests of the child.

The First Department noted that during the fact-finding, the grandmother continued to deny that the child had been abused by the parents, but rather that the child’s injuries were sustained in a voodoo ritual undertaken by the Administration for Children’s Services and the granddaughter’s care agency. The grandmother’s letters and emails to the court, counsel and others, also raised concerns about her mental health. Moreover, the grandmother refused to acknowledge the deficiencies of the mother as a parent. The mother, who had been found to have a depraved indifference to the child’s welfare, lived with the grandmother.

The emancipation of a child does not automatically result in the downward modification of an unallocated order of child support. Rather, the support payor has the burden of proving that the existing  amount of unallocated child support is excessive based on the needs of the remaining unemancipated children.

Such was the holding of the Appellate Division, Second Department, in its May, 2013 decision in Lamassa v. Lamassa.

In this case, the parties had entered into a stipulation of settlement of their divorce action that was read into the record. Then when the parties eldest child turned 18, the father unilaterally, and without a court order, reduced his child support payments. He then further reduced the amount of the support payments each time one of the parties’ remaining three children reached the age of 21 years.

Only then did the father move, in effect, to reduce the amount of child support payments and to cancel child support arrears accruing before that application.

At the hearing before Supreme Court, Richmond County Court Attorney/Referee Fay M. de Grimston, the father testified that as each of the children reached 21 years of age, he reduced the amount of support payments. He claimed that the mother had accepted the checks from him without objecting orally or in writing. The mother denied that she agreed to a reduction of the support payments. She claimed that she did not receive any checks directly from the father, but rather from the children. She asked the children to tell the father that the amount was wrong.

The mother also testified about an (unspecified) attempt to enforce the child support obligation. In addition, three of the parties’ children also testified and stated that the support checks were given to them to pass on to their mother; and that they never saw the father give checks directly to the mother (two of the children were still living with the mother at the time of the hearing).

The Referee concluded that the father was not entitled to a reduction in the amount of the support payments, or to cancellation of support arrears. The father had unilaterally reduced his support payments without court order, but had not provided credible proof of an oral agreement to modify the support obligation.

Affirming the determination that the father was not entitled to retroactive relief, the Second Department held that the father was not entitled to a reduction of the amount of child support payments, or a cancellation of child support arrears:

When child support has been ordered for more than one child, the emancipation of the oldest child does not automatically reduce the amount of support owed under an order of support for multiple children. In addition, a party seeking a downward modification of an unallocated order of child support based on the emancipation of one of the children has the burden of proving that the amount of unallocated child support is excessive based on the needs of the remaining children.

Continue Reading Emancipation Of One Child Does Not Automatically Result in a Downward Modification of Unallocated Child Support

No retroactive fine or suspension of maintenance is to be  imposed against a wife who violated her so-ordered stipulation not to allow her paramour into the marital residence. Instead, suspension of maintenance and a fine would only be imposed prospectively and only until the wife complied with that stipulation. Civil contempt fines are not intended to punish the wrongdoer, but to secure future compliance with court orders.

Such was the holding of the Appellate Decision, Second Department, in its May 22, 2013 affirmance of Nassau County Supreme Court Justice Daniel Palmieri‘s order in Ruesch v. Ruesch.

For the pendency of this divorce action, the wife had been awarded exclusive possession of the marital home, temporary custody of the parties’ children, maintenance and child support.

At some point, the wife had permitted her alleged paramour to move into the marital home. In a so-ordered stipulation, the wife agreed that her paramour would be barred from entering the marital home absent further order of the court. A month later, the husband moved to hold the wife in contempt of that so-ordered stipulation because the paramour was continuing to reside in the marital residence.

Upon the wife’s admission that she permitted her paramour to continue to reside in the marital residence, Justice Palmieri held the wife in contempt pursuant to Judiciary Law §753. Justice Palmieri prospectively and temporarily suspended maintenance payments and imposed a fine of $250 for each day the wife remained in violation until the wife purged her contempt by demonstrating compliance with the so-ordered stipulation. Justice Palmieri denied the husband’s request for a counsel fee.

On appeal, the husband  contended that Justice Palmieri should have suspended maintenance payments and imposed a fine retroactive to the first day the wife violated the so-ordered stipulation.

The Second Department affirmed. Justice Palmieri had properly recognized that civil contempt fines are remedial in nature and not punitive. In the absence of a monetary loss for the husband, the contempt fine would be designed only to secure future compliance  with the so-ordered stipulation.

The appellate court held that unlike fines for criminal contempt where deterrence is the aim and the State is the aggrieved party entitled to the award, civil contempt fines must be remedial in nature and effect. The fine for a civil contempt should be formulated not to punish an offender, but solely to compensate or indemnify private complainants. Thus, a fine is considered civil and remedial if it either coerces the recalcitrant party into compliance with a court order, or compensates the claimant for some loss. The violator must be given the opportunity to comply, and thereby purge the violation.

Here, where the [husband] failed to prove an actual loss, any penalty that punished the [wife] for her past acts of disobedience would have been within the rubric of a criminal contempt and thus improper within this civil contempt adjudication. Accordingly, the Supreme Court did not err in suspending maintenance payments and imposing a fine only prospectively.

The Second Department also held there was no merit to the husband’s appeal of the denial of his application for an award of counsel fees.

In divorce actions, it is not uncommon for one party to be made the financial obligor, and the other to perform some action. If the power of the court is to be administered even-handedly, its remedies must be balanced.

Should our stipulations themselves state what the remedy will be for a violation? Will a liquidated damages provision be upheld?

If Ms. Ruesch can avoid even a slap on the wrist by finally complying with the order she had violated for four months, is respect for the court’s orders truly being promoted? Indeed, with the denial of even a counsel fee, what is the lesson to be learned here?

The husband was represented on the appeal by Edward K. Blodnick, Thomas R. Fazio, and Steven R. Talan of Blodnick, Fazio & Associates, P.C., of Garden City.

The Appellate Division, Second Department, has held that a father’s application for sole custody and for supervised visitation for the mother, should not have been denied without a hearing, where the father had alleged that the mother operated a motor vehicle in a impaired state, posing a danger to the children.

In Nusbaum v. Nusbaum, the parties in 2011 had entered a so-ordered stipulation of settlement of their divorce action under which they were to share joint legal custody of their then 14-year-old twins. The father was awarded residential custody, with the mother having unsupervised visitation.

Here, the father had moved to modify the provisions of that stipulation so as to award him sole legal custody of the children and to suspend the mother’s visitation with the children, unless supervised. The father alleged, among other things, that the mother had operated a motor vehicle while impaired, endangering the children. The father also sought an order directing the mother to attend and complete programs in drug and alcohol rehabilitation and anger management.

Pending the determination of the father’s motion, the parties agreed to certain supervised visitation. Moreover, pending his decision on the father’s application, Westchester County Supreme Court Justice John P. Colangelo, in effect, issued a temporary restraining order prohibiting the mother from operating a motor vehicle with the children as passengers.

Ultimately, in an October 23, 2012 order, Justice Colangelo denied the father’s application without holding a hearing.

The father appealed. On December 17, 2012, the Second Department stayed enforcement of the order denying the father’s motion pending the determination of his appeal. The mother’s visitation with the children was limited to visits on two days per week, two hours per day, and the mother was prohibited from operating a motor vehicle with the children as passengers.

Deciding the appeal May 8, 2013 decision, the Second Department held that the father had satisfied his burden to show a subsequent change of circumstances so that modification may be required to protect the best interests of the children. Moreover, the appellate court held, it did not appear that Justice Colangelo possessed adequate relevant information to enable him to make an informed and provident determination as to the children’s best interest so as to render a hearing unnecessary.

Accordingly, the father’s motion should not have been denied without first conducting a full evidentiary hearing to ascertain the children’s best interests. The Second Department sent the case back for such a hearing. Moreover, the Second Department again directed that in the interim, and until further order of the Supreme Court, the mother’s visitation was to be limited to two days per week, two hours per day, with the mother prohibited from operating a motor vehicle with the children as passengers.

Joseph J.A. Tringali, Sr., of counsel to Lawrence G. Nusbaum, Jr., of New Rochelle, represented the father. Donna E. Arams of Harold, Salant, Strassfield & Spielberg, of White Plains, represented the mother.

In a May 8, 2013 decision in Mejia v. Mejia, the Appellate Division, Second Department, modified a divorce judgment’s provisions concerning the cap on combined parental income, the disposition of the marital residence, college expenses for three children ages 14, 10 and 6, and judgment inconsistencies with the underlying decision and judgment  formalities.

After the parties separated, they each petitioned the Family Court for custody of the children. The parties consented that they share joint legal custody, and that the father have primary physical custody.

After a non-jury trial on certain financial issues, the Family Court considered the first $200,000 of combined parental income in determining child support, based upon, among other things, “the economic reality of life in Rockland County,” and a determination that the gross income of the mother was substantially less than that of the father. The mother’s pro rata share of the basic child support obligation was 37% of 29% of the first $200,00 of combined parent income was fixed at $1,789 per month in the 2011 Family Court order.

The marital residence, titled in the parties’ joint names, was awarded to the father and the children, based upon the father’s claim that there was no equity in the house. The court further concluded in its decision that the father should maintain health insurance for the children, and that the mother should pay 37% of the college expenses of the children.

The Second Department lowered to $150,000 the applied cap on combined parental income, “considering the substantial difference between the parties’ income, the fact that the [mother] has less income than the [father], and the amount of parenting time awarded to the [mother].” Calculated on that basis, the mother’s pro rata share of the child support obligation was $1,341 per month.

Continue Reading The Second Department Rules on Child Support Parental Income Cap, Transfer of the Marital Residence, and Judgment Formalities

In five cases decided May 1, 2013, the Second Department continued to voice its concern when parents just don’t get along. Again, the court considered joint custody, hampering the child’s relationship with the other parent, private interviews of children by the judge, contempt for violations of visitation orders, and whether a non-parent may be granted custody over a surviving parent.

In Wright v. Kaura, the Second Department reversed a joint legal custody award to grant sole legal custody to a mother.  The appellate court noted that joint custody is encouraged primarily as a voluntary alternative for relatively stable, amicable parents behaving in mature civilized fashion.

Here, joint legal custody was inappropriate as the parties demonstrated an inability to cooperate on matters concerning the child. The record was replete with examples of hostility and antagonism between the parties, indicating that they were unable to put aside their differences for the good of the child. Thus, Acting Westchester Family Court Judge Thomas R. Daly erred when awarding the parties joint legal custody of their child.

In Lawlor v. Eder, the Second Department held that a father’s refusal to encourage and foster meaningful contact between the child and the mother was the basis to award residential  custody to the mother, although the parents shared joint legal custody.

A custodial parent’s interference with the relationship between a child and the noncustodial parent is deemed an act so inconsistent with the best interests of the children as to, per se, raise a strong probability that the offending party is unfit to act as custodial parent.

Continue Reading Custody Issues Considered in Five Second Department Cases Decided May 1st