In contrast to its decision in Zaratzian, the subject of yesterday’s blog post, the Second Department, in Eagar v. Suchan, held the same day that a father was entitled to receive child support from a mother after their two children moved in with him.
In Eagar, the parties’ 1999 Settlement Agreement which was incorporated, but not merged into their judgment of divorce, contained separate provisions for child support and the payment of college expenses for the children. At the time, the then 7- and 5-year old sons of the parties lived with their mother.
After the parties’ two children began to reside with the father, he petitioned to terminate his child support obligation.
After a hearing, Suffolk County Support Magistrate (and former Judge) Barbara Lynaugh granted the father’s petition. She determined that the parties’ older child, then 21, was emancipated, and directed the mother to pay child support to the father for the parties’ younger child, then 19, in the sum of $344 per week. Family Court Judge Martha L. Luft denied the mother’s objections to the ruling.
The Appellate Division, Second Department affirmed. It held that Magistrate Lynaugh properly exercised her discretion when applying the Child Support Standards Act formula percentage to the combined parental income in excess of the statutory cap. “Here, the Support Magistrate properly articulated her reasons for applying the statutory percentages to parental income over the statutory cap, and her determination was not an improvident exercise of discretion.” It appears that the mother’s C.S.S.A.-adjusted annual income was approximately $105,000.00, which (applying the 17% formula) resulted in a $344.00 per week award.
The appellate court did not discuss the language of the parties’ Stipulation of Settlement, or why that language allowed for an affirmative award to the father.
Here, the Settlement Agreement did not have an “Emancipation” provision. Rather, as to the child support being paid to the mother, the Agreement defined certain “Termination Events.”
Any and all child support obligations established by this agreement shall continue with respect to each child until the happening of any one of the following events, whichever shall first occur:
. . . .
There is a change in custody.
A child ceases to permanently reside with the parent to his herein designated as the “custodial parent” or “residential custodian”.
The father successfully argued that the younger child was not deemed “emancipated” under the parties’ Agreement. Rather, the Agreement simply provided that the child support payments to the mother were to terminate once the children moved in with their father. The clear and unambiguous language of the parties’ Agreement did not address the termination of all parental duties to support the children as a matter of law. Thus, while the child support payments payable to the mother pursuant to the Agreement may have terminated upon the relocation, the Agreement did not “emancipate” the children, permanently terminating the mother’s duty to receive support. The fact that the father’s support obligation to the mother under the Agreement terminated upon the children’s relocation did not preclude him from obtaining statutory child support from the mother. The father further argued that the parties were not free to contract away the child’s right to receive support from both parents.
The Second Department also upheld that Magistrate Lynaugh’s determination that the mother was not entitled to a credit against her child support obligation for the payments she was making towards the college room and board expenses of her son. That college expense obligation arose from a separate Article of the Agreement, and that Article provided for no such credit. As the father was not entitled to such a credit against his periodic child support obligation established the Agreement, neither would the mother be entitled to such a credit. “No such credit was contemplated by the parties’ stipulation of settlement.”
Question: the father’s periodic child support obligation was fixed by the agreement. Here, mother’s obligation was determined not by agreement, but by applying the C.S.S.A. Was not the Magistrate entitled to consider the contributions the mother was making towards college when considering whether it would be unjust or inappropriate to apply the formula to the entirety of the mother’s income?
Moreover, obligating the mother to pay full formula support (thus applying the formula to the entire combined parental income) when the child is away at college most of the year, leads one to suspect that something else was bothering the court.
Also, it would seem that the Second Department could just have easily have said that the parties in Eagar expressly contemplated a change of custody, and that they provided that should such occur, the child support obligation of the father would “terminate.” Had the parties intended for the father also to be able to receive child support, they would have said so.
Conversely, recognizing that it is against public policy for parents to terminate the parental duty to support, the mother in Zaratzian could have been obligated to pay support for her two sons whether her agreement called for the change in support as a matter of “termination” or “emancipation.”
Moreover, once the child is in college, he or she will not be residing in either parent’s home eight months a year or more. In the absence of day-to-day living expenses, such a swing in child support dollars is far more significant, and perhaps unwarranted. Getting in touch with my cynical side, what would a noncustodial parent be willing to offer a child to relocate in order to achieve such a result?
The lesson, then, may be that in the absence of a very specific agreement provision stating whether or not the non-custodial parent will or will not have a right to receive child support should the primary residence of a child change, the result may be no easier to predict than a flip of the coin.
Glenn S. Koopersmith, Esq., of counsel to Librett, Friedland & Lieberman, LLP, of Garden City, represented the father. Sheryl D. King Richards, Esq., and Bridget J. Tartaglia, Esq.,of Jakubowski, Robertson, Maffei, Goldsmith & Tartaglia, LLP, of Saint James, represented the mother.
My thanks to Lloyd Friedland, Esq., for providing information relating to the decision.