Father and daughter.jpgParents sometimes enter child support agreements which track the presumptive formula set out in New York’s Child Support Standards Act (Family Court Act §413; Domestic Relations Law §240[1-b]). However, parents in their agreements often deviate from the presumptive formula to reflect various considerations. That deviation for a married couple may reflect the delicate balancing of property rights, spousal maintenance and child support.

For example, parents may reduce the presumptive child support amount where the child(ren) spend more time with the “non-custodial” parent than what might be considered the “normal” alternate weekends and a mid-week dinner.

May the non-custodial parent’s failure to fully exercise visitation rights under an agreement serve as a basis to increase child support?

In its July 11, 2012 opinion in McCormick v. McCormick, the Appellate Division Second Department said, “Yes.” It found that the substantial reduction in a father’s visitation with his child warranted an upward modification of the father’s child support obligation. That reduction in visitation provided the substantial change in circumstances needed to justify a support modification.

[T]he mother established that an increase in the father’s child support obligation was warranted by a change in circumstances … Specifically, the substantial reduction in the father’s visitation with the child, which significantly reduced the amount of money the father was required to spend on the child, “constituted an unanticipated change in circumstances that created the need for modification of the child support obligations.”

The Second Department was quoting from the 2002 decision of the Court of Appeals in Gravlin v. Ruppert, 98 NY2d 1, 743 NYS2d 773. That case also addressed a father’s failure to live up to his scheduled substantial parenting time.

Continue Reading Father's Failure To Visit Child Is Grounds To Increase Child Support

Life Insurance.jpgThe June 19, 2012 decision of Suffolk County Supreme Court Justice Peter H. Mayer in Mehran v. Mehran (PDF) resolved a motion made in a post-divorce judgment action by an ex-wife to enforce several provisions of the parties’ 2003 post-nuptial settlement agreement. That agreement was incorporated, but not merged into their 2004 judgment of divorce.

Among other alleged defaults, the ex-wife sought to specifically enforce those provisions of the agreement which obligated her ex-husband to maintain a $1,000,000.00 life insurance policy naming as irrevocable beneficiary the ex-wife as Trustee for the benefit of their unemancipated children.

The agreement further provided that the purpose of the provision was secure the payment of obligations of the ex-husband under the agreement in the event of his death.  Upon the ex-husband’s death, the ex-wife is to use the insurance proceeds to pay all of those obligations. If any proceeds are left over, the excess proceeds are to be distributed equally among the ex-husband’s surviving children (the ex-husband also had children of a prior marriage). The agreement provided:

1. The [ex-husband] agrees that he will maintain in full force and effect, and neither pledge, hypothecate nor encumber the existing policies insuring his life in the minimum face value of One Million ($1,000,000.00) Dollars naming the [ex-wife] as Trustee for the benefit of the children as irrevocable beneficiaries of said policy, with [sic] such time as the children are emancipated.

2. It is the intention of this article that the [ex-husband] maintain sufficient Life Insurance to cover all of his obligations to this agreement.

3. In the event of the [ex-husband’s] demise and the payment to the [ex-wife] of the life insurance proceeds as trustee, she shall pay the sums due from the [ex-husband] pursuant to this agreement. When all sums pursuant to this agreement have been fully paid, and if there is any balance in said account, said balance shall be distributed equally among the [ex-husband’s] children surviving him.

The ex-husband opposed his ex-wife’s motion for summary judgment specifically enforcing this provision by arguing that he and ex-wife were unable to agree to the terms of a proposed trust agreement and that he, in fact, had an insurance policy in existence with the children named as irrevocable trustees. He argued that he needed a trust agreement to “protect his other children” from his first marriage. He sought to name a son from his first marriage as “co-trustee.” Notwithstanding the fact that the ex-wife was not named as the trustee, the ex-husband contended he had substantially complied with the provision.

Justice Mayer disagreed. Naming a party as a “beneficiary” on a life insurance policy instead of an “irrevocable beneficiary” as required by the terms of a post nuptial agreement is not substantial compliance with the provision. Rather Justice Mayer held the ex-husband committed a material breach of the agreement for which a contempt finding and an award of counsel fees may be proper. When the terms of a written contract are clear and unambiguous, the intent of the parties must be found within the four corners of the contract, giving practical interpretation to the language employed and the parties’ reasonable expectations.

Here, the parties’ agreement is clear and unambiguous in directing that ex-husband name ex-wife “as Trustee for the benefit of the children as irrevocable beneficiaries of said policy” until such time as they are emancipated.

Declaring the ex-husband’s argument that he needed to protect his other children was “specious, at best,” the Court noted that the agreement itself provided for the distribution of any remaining funds from that policy to all of ex-husband’s children, after his obligations under the agreement were paid.

Thus, the ex-husband was directed to obtain or to amend the life insurance policy he presently maintains insuring his life in the minimum face value of one million ($1.000,000.00) dollars naming the ex-wife as Trustee for the benefit of the children as irrevocable beneficiaries of said policy, until such time as the children are emancipated.

The ex-wife was represented by Andrea Seychett Schear of Melville, NY. The ex-husband was represented by King & Streisfeld of Lake Success, NY.

Collaborative Practice Logo.jpgMonica and Mitchell Mandell were married in 1998. They have three children. After Mr. Mandell moved out last year, his wife retained attorney Ellen Jancko-Baken to represent her. Ms. Mandell was interested in pursuing the “Collaborative Law” process.

After three perhaps “preliminary” meetings, the contemplated Collaborative Process fell apart. Ms. Mandell used her same attorney to commence a divorce action. Her husband, then, looked to disqualify his wife’s lawyer, claiming such representation was barred by the rules of Collaborative practice.

As noted by Westchester Supreme Court Justice Alan D. Scheinkman in his June 28, 2012 decision in Mandell v. Mandell, the Collaborative Process is a form of dispute resolution in which the parties retain counsel specially trained in collaborative law and enter into a contract to negotiate a settlement without involving the Court.

As Justice Scheinkman noted, one of the principal features of the Collaborative Process is that, if the matter is not resolved, the attorneys who represented the parties in the unsuccessful effort to reach a settlement may not thereafter represent the parties in contested litigation. Among other benefits, this hallmark of the process:

  • eliminates pre-litigation posturing;
  • provides clients with a greater degree of influence in candid negotiations in which the clients participate directly;
  • motivates the parties to continue working toward a mutually agreeable resolutiont due to the prospective expense of having to hire new lawyers if the matter has to go to court;
  • makes it clear that counsel are committing themselves to the process of dispute resolution by having counsel agree to absent themselves from any future litigation;
  • gives counsel an economic incentive to stick with the process;
  • discourages counsel from abandoning the process since their role, and their fees, would end; and
  • conversely, provides counsel with no personal monetary incentive to encourage litigation.

In light of his wife’s interest in using the Collaborative Process, the husband retained Neil Kozek. Both Ms. Jancko-Baken and Mr. Kozek are members of the International and New York Associations of Collaborative Professionals.

Continue Reading Counsel Not Disqualified From Litigation Where Collaborative Divorce Participation Agreement Not Signed

Diary girl 2.jpgA father’s efforts to push his daughter into keeping a journal disparaging her mother and to be videotaped complaining about her mother caused his visitation to be both supervised and limited. The father’s stated intention to enhance his case that the mother was abusive to her daughter, which both the appointed forensic evaluator and the Court found was not the case, was not justification for the father’s poor judgment.

In her June 14, 2012 decision in Matter of A.H. v C.B., Queens County Family Court Judge Edwina G. Richardson-Mendelson, not only rejected a father’s efforts to expand his visitation, but further limited them.

The father alleged the mother’s abusive behavior towards their daughter constituted the change in circumstances necessary to alter existing arrangements. The father also sought to resume the liberal visitation that he had been informally allowed by the mother following the parties’ divorce. The parties’ 2003 divorce decree granted custody to the mother, but did not deal with visitation issues. As a result, a 2002 Family Court order providing for supervised visitation had remained in effect, although often not followed.

The father claimed that the daughter told him that the mother would call her “a jackass” and “stupid” and that in conversations with the daughter, the mother would disparage the father and his family. The father testified that he began to be concerned that the mother was mistreating his daughter through “verbal abuse” and by putting extreme pressure on the daughter to do well in school. He alleged that the mother slapped the daughter and abused her mentally and emotionally.

In 2009, the father gave his daughter a journal and encouraged her to write in it about her negative experiences with her mother. He also videotaped his daughter talking about her mother in a negative way.

Continue Reading Father Who Coerced Daughter into Making Anti-Mother Journal and Video Limited to Supervised Visitation

Gavel main.jpgIn a stipulation which settled a prior dispute between parents, the father agreed to pay child support. The mother had sole custody of the parties’ child.

The father thereafter commenced a Nassau County Family Court proceeding to terminate his child support obligation. Upon the mother’s motion, Support Magistrate Penelope Beck Cahn dismissed the father’s petition. Family Court Judge Edmund Dane denied the husband’s objections to the Magistrate’s ruling.

Last week, in Singer v. Prizer, the Appellate Division Second Department affirmed. The court held that the father’s agreement not to “bring on any application to . . . modify” his agreed-upon child support obligation precluded the father from commencing the proceeding below. The Second Department held:

the cause of action alleged in the petition was “completely undermined and rendered legally insufficient by the very terms of” the stipulation.

The Court did not expressly state whether it was construing the husband’s waiver of the right to apply for a modification as a waiver of the right to seek a complete termination of the child support obligation. There was no mention of a provision of the parties’ stipulation which barred a proceeding to completely terminate the child support obligation.

Prenuptial Agreement.jpgThe premarital agreement of the parties limited their rights to obtain spousal support upon divorce. It also contained a waiver of their rights to counsel fees.

Nevertheless, recently-retired New York County Supreme Court Justice Saralee Evans awarded the wife $6,000 per month in unallocated pendente lite support (an award not specifying how much of it was spousal maintenance and how much was child support). Justice Evans also made two separate awards of interim counsel fees to the wife, each in the sum of $25,000.

In its June 12, 2012 decision in Vinik v. Lee, the Appellate Division, First Department, affirmed.

While the parties’ premarital agreement limits their rights to obtain spousal support and waives their rights to counsel fees, it does not bar temporary relief, including temporary maintenance [and] interim counsel fees.

The appellate court specifically noted that the parties’ agreements did not address custody and child support. Therefore, the waiver of counsel fees did not apply to counsel fees related to litigating child custody and support issues.

Moreover, the First Department noted that Justice Evans made her counsel fee awards based on a proper consideration of the financial circumstances of both parties together with all the other circumstances of the case. Justice Evans also properly considered the fees necessitated by the husband’s litigation tactics and to ensure that the litigation would not be “shaped . . . by the power of the bankroll” (quoting the Court of Appeals decision in O’Shea v. O’Shea, 93 N.Y.2d 187 [1999]).

The appellate court noted that under Illinois law, which governed the parties’ agreement, the result would be the same. In that state, a ban on a counsel fee award in a premarital agreement is not enforceable as to child-related issues. That would violate public policy. Moreover, Illinois law also permits an interim counsel fee award where the parties have waived counsel fees in an agreement.

The wife was represented by Nina S. Epstein of Goldweber Epstein LLP; the husband was represented by Kevin M. McDonough of Stein Riso Mantel, LLP; both of New York City.

Within weeks after entering a temporary support stipulation, the husband in a Kings County divorce action, resigned from his employment as a police officer with the New York City Police Department (NYPD). He moved to Georgia and entered the police academy as an entry-level officer at $38,000.00 per year, a more than 50% reduction of his $89,000.00 NYPD annual income.

In his May 30, 2012 decision in Darby v. Darby, Supreme Court Justice Jeffrey S. Sunshine determined whether to impute income to the husband when deciding the wife’s request for additional pendente lite counsel fees.

The parties were married on May 5, 2000. The parties have 4 children under 11 years of age.

At the preliminary conference on September 12, 2011, the parties stipulated that the husband would pay pendente lite legal fees to the wife’s attorney of $5,000.00. On November 16, 2011, the parties entered into another stipulation under which the husband agreed to pay the wife temporary support of $1615.40 bi-weekly.

With his subsequent NYPD resignation and move to Georgia, the husband began to default in his obligations immediately. The wife moved to hold the husband in contempt for failure to pay the stipulated amount of support, also requesting security, a money judgment, and an additional $20,000.00 in interim counsel fees.

The husband did not dispute that he unilaterally reduced his annual income by almost $50,000.00 when he voluntarily resigned from his employment with NYPD and moved to Georgia to enter the Dekalb County police academy as an entry-level officer;. He contended that his move was motivated by a decision to change career paths and not by a desire to reduce his income available for child support or to avoid paying maintenance.

Dekalb PD.jpgNevertheless, the husband argued that he should not be responsible for the pendente lite support obligation to which he agreed because he now earned only $1,417.38 bi-weekly. This was less than his $1,765.40 bi-weekly support obligation under the parties’ so-ordered stipulation.

The husband told the Court that he intended, in the future, to seek a second job in order to meet his pendente lite support obligations. However, he advised, he could not find a second job until his Georgia police academy training and a one-year probationary period was completed.

After presenting the current state of the law on pendente lite counsel fees, Justice Sunshine found the husband’s arguments “wholly unpersuasive.” The husband’s current financial situation was a direct result of his willful premeditated and purposeful decision, after commencing this divorce action, to leave his employment and relocate and begin a new career earning less than half of what he earned in New York.

This Court will not allow the husband to control this litigation or attempt to financially restrain the wife’s ability to participate meaningfully in this litigation by his self-serving claim that he is unable to pay, particularly under the facts and circumstances presented here.

Justice Sunshine noted that the husband’s actions forced the wife to incur additional counsel fees to enforce the parties’ stipulation. Additionally, the Court noted that the husband used tactics to delay the litigation: he repeatedly failed to appear at scheduled court appearances claiming that he was unavailable to appear because of his police academy attendance in Georgia.

Litigants are free to chart their own course in many aspects of a matrimonial proceeding; however, the Court will not permit the husband to utilize the financial consequences of his decision to start a divorce action, to change career paths and to relocate to control the wife’s ability to seek judicial relief.

Regardless of the recent reduction in income, the husband continued to be the monied spouse. The wife was not employed outside of the home. She was a full-time care-giver and mother to the parties’ four young children.

Justice Sunshine rejected the husband’s argument that he could commence a divorce proceeding, negotiate and agree to a pendente lite support obligation and then leave his wife and four young children behind in order to take an entry-level job in another state.

The husband’s purposeful and foreseeable reduction in income should not be a basis for him to refuse to contribute to the non-monied spouse’s counsel fees. . . . The husband shall not be permitted to control this litigation by controlling the purse-strings.

The Court found that the wife had demonstrated that she incurred counsel fees in proportion to the sum she requested. Justice Sunshine granted the wife an additional interim award of legal fees in the sum of $7,500.00.

The husband was represented by Yvonne E. Gardener; the wife was represented by Angela Scarlato, both of Brooklyn.

Salary.jpgTwo cases this month discussed the treatment of employer-provided fringe benefits in child support determinations.

In his May 14, 2012 decision in K.W. v. M.W., Onondaga County Family Court Judge Michael L. Hanuszczak rejected a father’s objections to the determination of a Support Magistrate. While doing so, Judge Hanuszczak considered the impact of certain union fringe benefits when determining income for Child Support Standards Act purposes. The father, a member of the International Association of Heat & Frost Insulators andAllied Workers Local 30, claimed his income was the union base rate of $28.55 per hour. The Support Magistrate upheld the argument of the mother that the court should also impute the value of contributions to various union benefit plans, bringing the total to $45.35 per hour. Those union plans included the pension fund, welfare fund, annuity fund, apprenticeship fund, industry advancement fund, and LMCT [presumably a Labor Management Cooperate Trust Fund]. Judge Hanuszczak stated:

As a general rule, the Court finds that such benefits must be regularly or periodically received by the recipient or must reduce the recipient’s living expenses to be considered as a part of a parent’s gross income.

Thus, for example, the amount contributed by an employer to the employee’s pension fund, 401k account, or health insurance premium would not be imputed to gross income for the purpose of calculating child support. However, an allowance for a vehicle or cell phone which is used for personal use would be considered for inclusion in the gross income amount. Such a rule would be applied by the court on a case-by-case basis taking into consideration the evidence adduced at trial on that particular proceeding.

Hanuszczak Michael.jpgJudge Hanuszczak’s rule was dicta, remarks not necessary to his determination affirming the Support Magistrate’s holding that the father was not entitled to a downward modification of his support obligation. That result was supported by “other evidence in the record at trial.” The father had failed to demonstrate an adequate change of circumstances to warrant a reduction of his child support obligation.

On May 23, 2012, the Appellate Division, Second Department, in Bershadskaya v. Nemirovsky reversed the determination of Kings County Family Court Judge Arnold Lim which had upheld the order of Support Magistrate John M. Fasone. The Family Court rulings determined that additional income should not be imputed to a father. To the contrary, when ordering that a new hearing be held, the Second Department stated:

Where the father admitted that his company paid for him to lease a late model BMW, where BMW Financial Services documents revealed that he was a general manager with a gross annual salary of $95,000, and where he failed to submit compulsory financial disclosure, it was an improvident exercise of discretion for the Support Magistrate to fail to impute additional income to the father.

The Second Department did not specifically hold that all, or any specified portion of the BMW lease payments must be added to the father’s income; only that the Family Court was incorrect when finding that additional income should not be imputed to the father.

The treatment of fringe benefits is an uncertain area. Courts have included the value of employer-provided housing, but only if residency is not mandatory. Massey v. Evans (4th Dept. 2009), C.H. v. S.H. (Sup. Schenectady 2012). It may be proper to add other benefits such as automobile insurance, gas and oil payments, vehicle maintenance and repair costs, and personal expense allowances. Skinner v. Skinner (241 A.D.2d 544, 661 N.Y.S.2d 648 [2nd Dept. 1999]). Before-tax health insurance deductions have been imputed. Bellinger v. Bellinger (3rd Dept. 2007). Mandatory public employee retirement contributions should not be considered. Ballard v. Davis, 259 A.D.2d 881, 686 N.Y.S.2d 225 (3rd Dept. 1999).

Judge Hanuszczak’s general rule seems fair and workable. Does the fringe benefit reduce living expenses? Is it regularly or periodically received? When the family was together, was it a benefit that directly or indirectly enabled more money to be available for the support of the child? Is it fair to hold that the benefit puts money in the parent’s pocket for which the child should now benefit?

Child balancing parents 2.jpgTwo May 23, 2012 decisions of the Appellate Division, Second Department, demonstrate the importance in custody determinations of demonstrating whether a parent fosters or hampers the children’s relationship with the other parent.

In its decision in Purse v. Crocker, the court affirmed the award of Suffolk County Family Court Referee Kerri Lechtrecker of sole custody to a father where the mother and her family deliberately interfered with the father’s relationship with the parties’ son. The mother had omitted the father’s name from the child’s birth certificate, failed to include the father in the planning of the child’s christening and first birthday party, and sought police intervention to prevent the father from gaining access to the child.

Interference with the relationship between a child and the noncustodial parent is “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.”

That same day. the Second Department in DeViteri v. Saldana affirmed Westchester Family Court Judge David Klein‘s award of custody to a father, holding:

Although the evidence adduced at the hearing indicated that both parents were loving and competent caregivers, the evidence also demonstrated that the father had shown a greater ability and willingness than the mother to foster the child’s relationship with the other parent.

Earlier this month, I discussed the April, 2012 decision of the Third Department in Jeannemarie O. v. Richard P. which upheld the award to a father of temporary custody of the children where the mother’s positive attributes were outweighed by her cumulative efforts to interfere with the father’s relationship with the children.

The courts have made it increasingly clear, the effect an award of custody to one parent might have on a child’s relationship with the other parent is a substantial factor in custody determinations, perhaps second only to the catch-all “best interests of the child.”

In Purse, the father was represented by Maria I. Moir, of Moir & Saltz, LLP, of Greenlawn. The mother was represented by John Virdone of Garden City.

In DeViteri, the father was represented by Alex Smith of the Dreyer Law Offices, PLLC, of Newburgh. The mother was represented by Lisa Beth Older, of New York City. Martin N. Ashley was the Attorney for the Child.

Handshake 1.jpgParticularly when it comes to agreements fixing child support obligations, “shaking on it” is simply not enough.

Both the Domestic Relations Law and the Family Court Act authorize parents to enter agreements which establish their child support obligations. DRL §§236B(3) and 240(1-b)(h) and FCA §413(1)(h) set out many requirements for such agreements.

Nothing suggests that modifications of such agreements are any less prescribed. Indeed, a “belt and suspenders” approach calls for nothing less than a fully-restated support obligation agreement to implement the slightest change to which parents agree.

Consider the March 29, 2012 decision of the Appellate Division, Third Department, in Hirsch v. Schwartz. The parties’ 2007 separation agreement was incorporated into and survived their 2009 judgment of divorce. It required the father to pay 96% of all child-care expenses for the parties’ two children. Shortly after the divorce, the mother sent the father a letter offering to  reduce the father’s child-care expenses from 96% to 75%. Although the father did not sign and return the letter, he made at least two full reimbursement payments and several partial payments in the months that followed.

The mother subsequently commenced a Saratoga County Family Court proceeding to enforce the child support provisions of the original judgment of divorce. The father argued that the mother’s letter offer served to modify his support obligations and that the terms of this subsequent agreement should be enforced. Following a trial, the Support Magistrate found that the letter offer did constitute a valid modification of the parties’ separation agreement; the father’s child-care share of expenses was reduced to 75%. However, upon the mother’s written objections, Family Court Judge Gilbert Abramson concluded that the Support Magistrate lacked the authority to enforce the terms of the purported modification agreement. Therefore, the original provisions of the judgment of divorce concerning the father’s child-care obligations controlled.

The Third Department affirmed, holding that the Family Court, as a court of limited jurisdiction, may only enforce or modify child support provisions contained in a valid court order or judgment. Thus, even assuming that the mother’s letter offer constituted a valid modification of the parties’ separation agreement, the Family Court “does not have subject matter jurisdiction [to] enforce the amended agreement which stands as an independent contract between the parties.”

It is noted that the Appellate Division, Second Department, in its April 24, 2012 decision in Tammone v. Tammone, also held that “the Family Court did not have jurisdiction to make a declaration as to the validity of an alleged oral modification of a separation agreement.”

The Third Department in Hirsch did not discuss whether the father might have a separate contract remedy enforceable in Supreme Court to recoup any “over-payments.” However, perhaps the lesson to be learned is that nothing less than a fully-restated court-approved child support agreement is sufficient to put into effect the slightest of modifications. Thus, among other provisions, the restated modification agreement should:

  • be in writing;
  • be signed by the parties;
  • be acknowledged before a notary public;
  • include a provision stating that the parties were advised of the provisions of the CSSA (Child Support Standards Act) and that the basic amount of child support provided for in the CSSA would “presumptively result in the correct amount of child support to be awarded”;
  • set forth the amount that the basic child support obligation would have been and the reasons why the parties may not have provided for the CSSA amount in their agreement or stipulation;
  • contain opting-out language limiting future modifications;
  • contain recitations regarding enforcement methods; and
  • contain, or at least reference and reaffirm all other related agreement provisions such as emancipation, health insurance and expenses, child care and college.

Then, the agreement should be submitted, on consent, to the Supreme Court to obtain a modified divorce judgment or order of support.

Yes, all this means that lawyers, for both parents, must be re-involved. However, nothing less will give peace of mind.

Anne Reynolds Copps of Albany represented the father. Jennifer P. Rutkey, of Gordon, Tepper & DeCoursey, L.L.P., of Glenville represented the mother.