Christopher J. Chimeri

Please indulge me; it’s one of my pet issues. And I apologize in advance for what may be my most boring blog post to date.

Writing math narratively is very difficult. When drafting a divorce settlement agreement, I try to include examples whenever formulas are written out. When reading decisions, I often draw a flow chart to help me follow the calculations.

Calculations done by the court establish rules of law. When an appellate court does it, that’s the way it’s going to be done in all cases like that in the future. All the more reason that the reader be able to follow and understand the calculations made by the court. For each calculation, you need to know how much went from where to where and why.

Sometimes, I can’t follow those calculations made by the court. Take the February 26, 2020 decision of the Second Department in Alliger-Bograd v. Bograd. The Court modified the equitable distribution credits awarded by retired Suffolk County Supreme Court Justice Carol MacKenzie; reducing from \$81,829.15 to \$23,350.00 the amount to be paid by a husband to the wife, in addition to the wife acquiring the husband’s interest in the marital residence.

I am not sure whether the decision provides all the numbers used to get to the final result. The marital residence being acquired by the wife was worth \$545,000.00 There was a mortgage and a Home Equity Line of Credit (HELOC) that totaled \$321,000.00. At first look, there was \$224,000.00 in equity.

If you delay going to court after an event that changes rights and obligations, you do so at your peril.

In Fortgang v. Fortgang, the parties were divorced in May 2011. Under their stipulation of settlement, the parties agreed that the husband would pay \$2,600 per month in basic child support for the parties’ two children. The stipulation provided that this child support obligation would decrease when the parties’ older child became emancipated, but did not provide the reduced amount.

In December 2013, the older child became emancipated, but the husband continued to pay the full child support amount. In November 2015, the parties’ younger child became emancipated, but the husband continued to pay child support for several months thereafter.

In December 2016, in response to motion by the wife, the husband cross-moved, for the first time, to recoup child support overpayments. Suffolk County Supreme Court Justice David T. Reilly granted the husband’s cross motion, and awarded him a money judgment against the wife for \$30,422.32 in overpaid child support.

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.”

It’s one of my pet topics. How do you provide — how do you write a provision awarding one spouse credit for paying down the mortgage principal while a divorce action is pending or thereafter?

Consider the August 29, 2018 decision of the Appellate Division, Second Department, in Westbrook v. Westbrook.

In April 2008, the wife commenced this action for a divorce and ancillary relief. In a pendente lite order, the Supreme Court, inter alia, directed the husband to pay temporary child support in the sum of \$150 per week. The court also directed the husband to pay a majority of the carrying charges on the marital residence, which included a first mortgage on the two-thirds share of the value of the marital residence that had been purchased from the husband’s siblings, as well as a home equity line of credit (hereinafter HELOC) that was secured by the marital residence.

On or about November 24, 2009, the parties executed a stipulation agreeing, inter alia, that the husband would have exclusive use and occupancy of the marital residence effective December 1, 2009, and that the husband would pay child support to the wife in the sum of \$350 per week commencing on December 1, 2009. Thereafter, the wife moved, inter alia, to increase the husband’s temporary child support obligation. In a pendente lite order dated May 21, 2010, the Supreme Court directed the husband to pay \$700 per week in temporary child support during the pendency of the action.

Following the trial, as is here relevant, Suffolk County Supreme Court Justice Marlene L. Budd declined to award the husband a credit for the payments made by him during the pendency of the action to reduce the principal balances of the first mortgage and the HELOC. In addition, the court directed that the marital residence be listed for sale, and that the husband make the payments towards the first mortgage and the HELOC if he continued to reside in the marital residence until the residence was sold.

The mother’s alienation of the children from the father was the sole basis stated by the Second Department while upholding a change of custody to the father. In its March 25, 2015 decision in Halioris v. Halioris, the court affirmed an order of Suffolk County Family Court Judge Bernard Cheng.

The Second Department

In its January 28, 2015 decision in Carlin v. Carlin, the Appellate Division, Second Department, upheld the removal of the forensic evaluator previously court-appointed in the parties’ divorce action.

On the renewed motion for the removal made by the wife, she submitted a letter from the Mental Health Professionals Certification Committee for the First