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Child support overpayments, resulting from the retroactive application of a reduced child support award, may be recouped against future add-on expenses of the children. So held the Appellate Division, First Department, in its March 31, 2022 decision in Castelloe v. Fong.

That decision affirmed an Order of New York County Supreme Court Justice Michael L. Katz, which in turn confirmed the award of a Special Referee.

The appellate court upheld the Referee’s decision to impute $250,000.00 in annual income to the father. The Court also upheld the Referee’s decision to use a $250,000.00 cap to calculate the father’s child support obligation of $3,333.33 per month ($40,000.00 per year), finding that it was sufficient to meet the children’s “actual needs” to live an “appropriate lifestyle.” The trial evidence reflected the parties’ comfortable upper-middle-class lifestyle and that both parties had significant financial resources to support the use of a $250,000 cap.Continue Reading Overpayment Of Child Support May Offset Future Add-on Expenses

The calculation of a retroactive periodic child support award to the wife and offsetting that award with credits for a retroactive award to the husband for the wife’s unpaid share of add-on expenses was the subject of the September 30, 2020 decision of the Appellate Division, Second Department in Levi v. Levi.

The parties were married in 2003 and had two children. On May 7, 2014, the husband commenced this action for a divorce. Pursuant to a pendente lite order dated September 3, 2014, the husband was directed to pay the wife $500 per month for temporary spousal maintenance, $750 per month for temporary child support, 100% of unreimbursed medical, dental, and eyeglasses expenses for the wife and the children, and to pay the expenses for certain therapists and tutors for the children.

At trial, it was established that the husband was employed full-time by the MTA, then earning a salary of $ 99,000 annually. The wife, a licensed optician, worked part-time at a neurovisual practice, earning $20 per hour, for an average of 25 hours per week.

In a February 8, 2017 decision after trial, Supreme Court Nassau County Justice Robert A. Bruno determined that the wife’s annual earnings of $26,000 represented 21% of the parties’ combined income. The trial court calculated the husband’s child support obligation under the Child Support Standards Act at $1,899.91 monthly, awarding that sum retroactive to the date of the wife’s application for pendente lite support.

Child support arrears were calculated to be $66,496.85, using the husband’s income at the time of trial to base the award retroactive to mid-2014, some 2½ years earlier when the husband was earning less. The husband appealed.Continue Reading Retroactive Child Support Awards: Heads I Win, Tails You Lose?

The Child Support Standards Act authorizes parents to agree to a child support obligation that deviates from the presumptive formula provided in that statute. However, if they are going to deviate from the formula, the parents must state what the obligation would have been if the formula were to be applied, and the reasons why the parties have agreed to deviate.

In its September 26, 2018 decision in Fasano v. Fasano, the Appellate Division, Second Department, held that if one of those reasons no longer applies, such is a “substantial change in circumstances” warranting a new child support determination.

The parties were married in 1993 and have two children together. In October, 2012, the parties entered into a stipulation of settlement of a prior divorce action after which that action was discontinued.

That stipulation provided that although the husband’s monthly child support obligation using the C.S.S.A. calculation would be $1,994.45 on the first $130,000.00 of combined parental income (then, the “cap”) and $2,575.61 on the total combined parental income, the parties had agreed that the husband’s monthly child support obligation would be $1,500.00. The stipulation also provided that there would be no “add-ons” or “additional health costs” added to these child support payments, even though the C.S.S.A. generally provides that each parent’s share of unreimbursed health care expenses is to be prorated in the same proportion as each parent’s income is to the combined parental income.

The stipulation contained an explanation that the deviation from the C.S.S.A. calculation was necessary “to allow the [husband] to retain the marital residence as a place for the children to be with him when they are together” and had “been agreed by the parties to be in the best interests of the children to provide them continuity and stability in their living and educational environments.”Continue Reading A Child Support Redetermination Is Warranted If a Stated Reason Parties Deviated From CSSA No Longer Applies

Trinity timesIn its February 18, 2016 decision in Michael J. D. V. Carolina E. P., the Appellate Division, First Department, held that because the trial court did not follow the precise requirements of the CSSA when determining that private school education and summer, extracurricular and weekend activities should be paid over and above basic child support, those awards would be vacated.

When making child support awards, the requirements of the Child Support Standards Act (CSSA) (Family Court Act §413 and Domestic Relations Law §240[1-b]) must be strictly followed. After the calculation of the basic periodic child support amount, the statute allows for the payment of certain categories of enumerated add on expenses, prorated according to the parents’ relative incomes.

The add on expenses expressly addressed in the CSSA are:

  1. child care expenses when a custodial parent is working, looking for work and/or engaged in an educational or training program that will lead to employment;
  2. health insurance and unreimbursed medical expenses; and
  3. educational expenses.

In the case before it, the parties were the parents of a son born December 17, 2008. The parties were never married and were not living together when the child was born. After the father learned he had a son, the mother and the child moved into the father’s luxury apartment in lower Manhattan. The parties were hopeful of continuing as a family and while living together, discussed marriage and the possibility of having a second child. They also discussed their son’s future, and the possibility he would attend a private school. It was their expectation at that time that the child would enjoy the “best of everything.” This living arrangement, however, was short-lived, lasting only four months (from May – August, 2009).Continue Reading Child Support Awards of Private School Tuition and Activities Require Statement of Factors Considered

Calulator on 100s 6 redThe Third Department gave us insight into its analysis of child support awards in two recent decisions in which it increased those awards.

What to do when the parents’ combined income exceeds the Child Support Standards Act (C.S.S.A.) cap, now $141,000, appears to be, at the trial level, often county-, if not judge-dependent. Use by the lower courts around the state upon these decisions will vary, perhaps greatly.

In Petersen v. Petersen, decided February 26, 2015, the Third Department increased the divorce-action award of Albany Supreme Court Justice Eugene P. Devine (now, himself, sitting on the Third Department).

The parties had one child, born in 1999. After the parties separated and lived apart for several years, the husband commenced this divorce action based on the parties’ separation agreement. After finding that the child support provision of the separation agreement did not comply with the Child Support Standards Act, a trial was held to address, among other things, child support.

Justice Devine granted the divorce, incorporated the parties’ separation agreement except for the weekly child support provision, and ordered the husband to pay child support in the amount of $414 per week, declining to order child support on any income above the C.S.S.A. statutory cap, then $136,000 (and now $141,000). The wife appealed.Continue Reading Increasing Child Support On Appeal: Awards On Income Over The Cap