It is often said that it is difficult, if not impossible to prove a negative. The concept may be extended to finding the intent of the parties to a contract, and more particularly a divorce settlement agreement
One would think a divorce settlement agreement would provide for all of the rights and obligations of a divorcing couple arising from their marriage, children, and divorce. So what happens when a subject is not specifically covered? If the agreement does not state that a specific child support-related expense is to be paid by the non-custodial parent, does that mean that that parent does not have such an obligation? Is an agreement required to specifically provide that any obligation not specifically stated does not exist?
Take the November 26, 2014 decision of the Appellate Division, Third Department, in Malone v. Malone. In that case, the Third Department upheld the denial of an ex-wife’s requested upward modification of the ex-husband’s child support because the underlying divorce settlement agreements were not unfair or inequitable when entered into; there was no proof the children’s needs were not being met (pardon the double negative); and there was no other basis for an upward modification. Doing so the Third Department affirmed the holding of Rensselaer County Supreme Court Acting Justice Peter A. Lynch.
However, the Third Department also modified Justice Lynch’s ruling by remitting the matter for a new determination of the ex-husband’s child support obligation because the agreements between the parties regarding child support and expenses failed to comply with the nonwaivable Child Support Standards Act recitation requirements.
Along the way to this holding, the appellate court discussed the wife’s request that the husband be required to contribute to the cost of the middle child’s private school tuition. The judgment of divorce and underlying agreements were silent as to the parties’ responsibility for such costs. As a result, the appellate court stated, the court “may award educational expenses as justice requires, having [due] regard for the circumstances of the case and of the respective parties and in the best interests of the child.” On this issue, relevant factors would include the parents’ educational background, the child’s academic acuity and the financial situation of the parents.
The Third Department also stated that in support of her application, the wife offered little more than her own subjective belief that the child in question would benefit from smaller class sizes and a more structured environment. The record as a whole contained scant objective evidence concerning the child’s particular academic requirements, the need for such requirements to be met in a private school setting and/or the husband’s ability to contribute to the expenses associated therewith. Given that lack of proof, the Third Department could not say that Justice Lynch abused his discretion when denying the requested contribution to the child’s tuition expenses. (Question: at the de novo determination of child support, may this issue be raised anew?)
Without an agreement, the list of “add-on” expenses which courts are seeing fit to impose over and above the basic periodic child support payments has been ever-expanding. Is the attorney-draftsmen required to foresee all of them?
Will a court respect a catch-all provision that generally states, “if it isn’t stated, then the non-custodial parent is not obligated to pay for it?” Such a provision might read:
The [non-custodial parent] shall not be liable for the payment of all or any portion of any expenses relating to insurance, health care, child care, education, religion, activities, or other expenses of the child(ren), except to the extent provided under this Agreement.
Certainly, such a provision wouldn’t hurt. However, it is noted that the parents are not, as a matter of public policy, allowed to bargain away their children’s right to support to such an extent that their needs are compromised. Nonetheless, such a catch-all provision should greatly increase the burden necessary to avoid the provision’s plain meaning.
Leah Walker Casey, Esq., of Schenectady, represented the ex-wife. The ex-husband represented himself.