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?

Three Second Department decisions within eight days this month reveal the discretion of the trial court when income is not apparent (no pun intended) on a determination of a parent’s basic child support obligation.

In Fein v. Fein, the Appellate Division, Second Department, affirmed the determination of Westchester County Supreme Court Justice Bruce E.

When calculating a child support obligation, what effect does a simultaneous spousal maintenance award have? The November 21, 2013 decision of the Appellate Division, Third Department, in Alecca v. Alecca reveals the conflict among the Departments, questions of logic, and the need for action by the Legislature.

Agreeing with Judge Anthony McGinty, deciding for the Ulster County Supreme Court, the appellate court held in Alecca that if a spousal maintenance award does not terminate until after all children have been emancipated, the maintenance award may not be deducted from the payor’s income for child support calculation purposes. Spousal maintenance does get deducted if it terminates before all children are emancipated and the awarding court provides for a specific adjustment of child support at the time of the maintenance termination.

Child support is presumptively the function of the Child Support Standards Acct (C.S.S.A.) formula (D.R.L. §240 [1-b]; F.C.A. §413). Depending upon the number of children to be supported, the presumptive formula is a certain percentage of parental income, with the obligation of the support payor being the payor’s pro rata portion of the combined parental income of both parents. In addition to the basic child support obligation, the parents’ obligation to pay additional amounts for health and child care expenses  is also presumptively a function of the parents’ pro rata shares of their combined income. Although relevant, an add-on obligation for educational expenses (if warranted by the circumstances, justice, and the best interests of the child) is not expressly a function of pro rata shares.


Continue Reading Child Support Computations When Spousal Maintenance is Awarded

College Fund 1.jpgAugust is off-to-college month. For divorced parents, the joys and sorrows of a child leaving the nest are often compounded by the parents’ disagreement over their division of college expenses.

Last Spring’s decision of the Second Department in Yorke v. Yorke provides guidance.  The parties are the parents of a child who entered college beginning in the Fall 2007 semester.  By two 2007 orders, the father was directed to pay 83% of the college tuition for the subject child prior to March 2009, and 82% of the tuition thereafter.

Those orders provided that the father was not responsible for contributing towards the child’s room and board at college.  This 2011 opinion did not discuss why room and board had been excluded, or the basis for the prospective (2009) change in the allocated percentages.

Instead, this 2010 Family Court, Orange County, proceeding involved only the calculation of the father’s  share of tuition. At the heart of the dispute was the effect of the child’s financial aid package, both as it reduced the tuition expense, but also as it was required to be spread over the costs for room and board.


Continue Reading College Financial Aid and Calculating the Divorced Parent's Pro Rata Obligation for Tuition