Among the hardest jobs of the matrimonial lawyer is to draft divorce settlement agreements that anticipate post-divorce events and then resolve them with precision. Two May 20, 2015 decisions of the Second Department highlight just how hard those jobs can be when it comes dealing with the child who switches his or her primary residence.
In Zaratzian v. Abadir, the appellate court affirmed a decision of Westchester County Supreme Court Justice John P. Colangelo that applied one couple’s Agreement to resolve their conflict in a manner neither party may have wanted.
Under their 2006 divorce settlement Agreement, the parties, both medical doctors, agreed to equally-shared time with their three children, and older daughter, then age 12, and 10 and 6-year old sons. Following the father’s remarriage in 2008 and the pregnancy of his new wife, the time-sharing arrangement broke down. The daughter resided only with the mother, the older son with the father and the younger son continuing to switch. Subsequent Family Court custody proceedings resulted in both boys living with their father.
Under the Separation Agreement, the father had agreed to pay the mother $1,500 per month in maintenance until the emancipation of one of the children. Until then, the father would pay an additional $1,500 per month in child support for all three unemancipated children. Upon the emancipation of one child, maintenance would stop, but child support would be increased to $1,750 per month. Upon the second emancipation, child support would be reduced to $1,000 per month.
The support Article of the Agreement contained the following typewritten provision:
Both parties agree to be bound by the provisions set forth in this Article III and each party agrees that neither party shall at any time make any application to modify the financial provisions of this Article III or the financial provisions of the divorce decree subsequently entered between the parties.
The Agreement defined various emancipation events, including:
Permanent residence away from the residence of the Father and the Mother. A residence at boarding school, camp, or college is not to be deemed a residence away from the residence of the Wife, and hence, such a residence at boarding school, camp, or college is not an emancipation event.
The emancipation Article also contained the following handwritten provision:
Notwithstanding any other term or provision contained in this agreement, in the event one or more of the children reside primarily with the Father, he shall be permitted to make any application he deems appropriate to modify his child support obligation as set forth in Article III and the resulting order shall supercede the terms of this agreement.
Following the Family Court proceedings, the mother moved in Supreme Court for an order relating to the payment of private school tuition for the daughter (she later asked for child support for the daughter computed under the Child Support Standards Act). The father cross-moved for an order requiring the mother to pay him C.S.S.A.-computed child support for the parties’ two sons.
According to Justice Colangelo, both parties contended that “the child support regime established by the Stipulation should be totally revamped, CSSA standards applied, and child support payments revised accordingly.” However, Justice Colangelo held that in order to significantly deviate from the terms of the Stipulation, a compelling an unanticipated change of circumstances was required. Justice Colangelo found that such a change was not present.
Instead, justice Colangelo found that as only one child continued to live with the mother, the Agreement required she receive child support of $1,000 per month, subject to reduction for amounts paid by the father for college room and board.
As for the father’s claim, Justice Colangelo found that under the handwritten emancipation provision, which superseded the typewritten limitation on judicial applications, the parties had agreed that should the father provide the primary residence for any of the children, he would be allowed to modify “his child support obligations” [emphasis in original]. Justice Colangelo further noted that the handwritten provision said nothing about the father’s right to seek to impose, for the first time, a child support obligation upon the mother. Adding such a term, would contradict the typewritten limitation on judicial applications contained in the support Article. Justice Colangelo also noted that as there was no indication that the father, whose annual income exceeded $750,000, was not able to adequately provide for the needs of the two sons.
Thus, Justice Colangelo concluded that the father remained obligated to pay support for one unemancipated child. Further, although the father was no longer obligated to pay the mother basic monthly child support for the parties’ sons, his application to receive child support from the mother was denied.
The Second Department affirmed. As the Separation Agreement was entered before the effective date of the 2010 amendments to Domestic Relations Law § 236(B)(9)(b)(2), in order to receive child support, the father had the burden of establishing an unanticipated and unreasonable change in circumstances resulting in a concomitant need, or that the agreement was not fair and equitable when entered into.
The appellate court agreed that a change in custody was not an unanticipated change of circumstances. The Separation Agreement expressly considered this possibility. It contained a provision that allowed the father to seek a downward modification of his own child support obligation. However, the Agreement did not allow him to seek child support from the mother.
Moreover, it was undisputed that the father, whose annual salary was approximately four times that of the mother, was able to adequately provide for the subject children’s needs. The bests interests of the children did not require a modification of the support provisions of the separation agreement.
Comment: My personal understanding of the provisions was never discussed. As all three children continue to live with either the father or the mother, none of the children were emancipated under the Agreement. The starting point for the father’s application should have been his continuing obligation to provide the mother with $1,500 in maintenance and $1,500 in child support per month. However, as two of the parties’ three children were living primarily with the father, the father was entitled “to make any application, he deems appropriate to modify his child support obligation.”
On the other hand, Justice Colangelo also noted that the Agreement could be interpreted in a way that all three children were emancipated: “indeed, it could plausibly be argued that with respect to all three Children, an Emancipation Event has occurred since none of them reside with their “Father and . . . Mother” [emphasis by the Court].
By the express provisions of the Agreement, a child moving in with dad triggered only a right to ask for relief. The provisions of the Agreement would appear to have given the court discretion not to reduce the father’s support obligations at all, or at the other extreme, to completely eliminate his obligation for all children. Under Justice Colangelo’s application, however, the result seemed automatic.
There are decisions in other cases that hold that in the absence of an agreement to the contrary, the emancipation of one child does not necessarily require a reduction in overall support. On the other hand, there are also decisions that hold that an agreed-upon right to make an application is not tantamount to a right to obtain relief.
If “my” interpretation is reasonable, even if it is not what the parties intended, such only emphasizes the importance of the precision of language and the anticipation of alternative scenarios.
My thanks to Mr. Burke for providing information relating to the decision.