Change of Circumstances

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In its December 14, 2016 decision in Piza v. Baez-Piza, the Appellate Division, Second Department, stated that a father was required to prove a change of circumstances before modifying a prior award of temporary custody. The court also held that where a wife’s attorney did not comply with billing rules, a trial court could not award the wife counsel fees in excess of the retainer amount initially paid by the wife to her attorney.

The parties were married in 1996 and later separated. The husband commenced this action for a divorce in 2010. They have a son, who is now 17 years old.

The parties cross-appealed from their judgment of divorce entered in the Supreme Court, Suffolk County (Marlene L. Budd, J.), that was entered upon a decision after trial of Justice Stephen M. Behar. That decision:

  • awarded the plaintiff custody of the parties’ child;
  • directed the defendant to pay child support in the sum of $293.20 per month;
  • awarded the mother $150 per week for the period of April 26, 2010, through July 11, 2016; and
  • awarded the wife an additional $7,500 in attorney’s fees for legal services provided following an earlier award of $3,500 in attorney’s fees.

Continue Reading The Burden At Trial to Change Temporary Custody Award; Counsel Fees Where Rules Not Followed

It is common for a divorce settlement agreement to provide that a child will be emancipated if he or she leaves the residence of the custodial parent. The result is the stated reduction in child support payments to the custodial parent. However, if the child not only leaves the custodial parent, but moves in with the non-custodial parent, may that parent obtain child support from the former custodial parent? That will depend on the language, or more particularly, the lack of language of the parents’ agreement.

Such is the lesson of the July 10, 2013 decision of the Appellate Division, Second Department, in Samuelson v. Samuelson. In that case, the parties were divorced in January, 2011. The divorce judgment incorporated the parties’ 2009 surviving stipulation of settlement.

Under that agreement, the father agreed to pay the mother basic child support of $1,150 per month for the parties’ two children until the occurrence of an “emancipation event,” defined to include a “change in custody.” The stipulation further provided that in the event one child was emancipated, the father’s basic child support obligation would be reduced to $846 per month.

Two months after the divorce judgment was entered, the parties agreed to transfer custody of their son from the mother to the father. Several months later, the father moved for an award of child support from the mother, to be “credited against my child support payments re our minor daughter.” The father claimed he was on the verge of personal bankruptcy.

Supreme Court Queens County Justice William Harrington denied the father’s motion, accepting the mother’s argument, and finding that the parties’ obligations were set by their agreement. The father failed to establish an unanticipated and unreasonable change in circumstances, or that the child’s needs were not being met.

The Second Department affirmed. The parties’ agreement was binding. Since the stipulation set forth the plaintiff’s child support obligation in the event of a change of custody of one of the children, a change in custody of one of the children could not be considered unanticipated.Continue Reading Child Support: When One of the Children Switches Homes