Using the state’s Child Support Enforcement Services can have unintended results. Having support payments made through a Support Collection Unit triggers a cost-of-living adjustment procedure that may result in a significant change to the court-ordered support obligations to which parties had agreed.

Consider the September 26, 2018 decision of the Appellate Division, Second Department, in Murray v. Murray. There, the former spouses in their 2001 surviving divorce settlement agreement had agreed to share joint custody of their children, with the mother having physical custody.

The parties had opted out of the basic child support obligations of the Child Support Standards Act (C.S.S.A.), with the father agreeing to pay a certain sum for child support from August 1, 2001, through January 31, 2006. The parties also executed a rider to their stipulation, in which they agreed that beginning on February 1, 2006, until both children were emancipated, the father would pay child support to the mother based on the C.S.S.A., but using the parties’ total combined income for the year 2005.

In an 2009 order, the Family Court, upon the parties’ consent, directed the father to pay $740.56 per week in child support for both children through the Support Collection Unit (the SCU).

In March 2017, the SCU notified the parties of the presumptive cost-of-living adjustment (COLA) to the father’s child support obligation authorized by Family Court Act §413-a. That would increase the father’s weekly child support obligation to $822.00.

The mother filed an objection to the cost of living adjustment pursuant to Family Court Act §413-a(3), requiring that a hearing be held for a redetermination under the C.S.S.A. After that hearing, Suffolk County Support Magistrate Aletha V. Fields, in effect, vacated the COLA increase. At the time, the subject child was 20 years old and entering her third year of college. Upon recalculating the amount of child support, Magistrate Fields fixed the father’s child support obligation at $360.00 per week. The Support Magistrate found that although the parties’ combined parental income was $371,697.08, the mother failed to set forth a basis upon which to apply the statutory child support percentage to any income above the statutory cap of $143,000.00.

The mother filed objections to the Support Magistrate’s order. However, Family Court Judge Anthony S. Senft, Jr., denied the mother’s objections. The mother appealed.

Continue Reading Child Support Payments Through Support Collection Units May Result in Unanticipated Changes

As of January 31, 2016, the “income cap” for maintenance is $178,000.

The presumptive final maintenance formula on the first $175,000 of the payor’s annual income only just came into effect 6 days before that, for cases filed on or after January 25, 2016 (New York’s Laws of 2015, chapter 269 (D.R.L. §236[B][6][b][4]). For temporary maintenance, the $175,000 income cap under D.R.L. §236(B)(5-a)(b)(4) became effective for cases filed after October 24, 2015.

The Cost of Living Adjustment (COLA) to the $175,000 income cap is to be made every two years:

“[B]eginning January thirty-first, two thousand sixteen and every two years thereafter, the income cap amount shall increase by the sum of the average annual percentage changes in the consumer price index for all urban consumers (CPIU) as published by the United States department of labor bureau of labor statistics for the prior two years multiplied by the then income cap and then rounded to the nearest one thousand dollars. The office of court administration shall determine and publish the income cap.”

However, the income cap for child support purposes is still the $141,000 that has been in place since January 31, 2014.

Why? Because under New York’s Laws of 2015, chapter 347, Social Services Law §111-i was amended to change the COLA date from January 31st to March 1st. The child support cap will remain $141,000 until March 1, 2016.
Continue Reading Cost of Living Adjustments to the Maintenance and Child Support Formulas

The “Voluntary Payments” clause of the parties’ divorce stipulation of settlement prevented an ex-husband from using his non-required payments as an offset against his unpaid obligations. So held the First Department in its January 28, 2014 decision in Trepel v. Trepel. Doing so, the appeallate court affirmed the order of New York County Supreme Court Justice Lori S. Sattler that had awarded the ex-wife $38,994 in arrears for unpaid cost-of-living increases in child support and distributive award interest, plus $2,500 in counsel fees.

The “Voluntary Payments” clause provided that “[a]ny payments made by either party to the other . . . shall not alter that party’s legal obligations hereunder (except to the extent it discharges or satisfies such obligations), nor create any precedent for the future.”

The First Department held that this clause clearly and unambiguously expressed the intent of the parties. Since the payments to the ex-wife that the ex-husband was not obligated to make, however generous, did not satisfy any of his obligations under the stipulation, he remained liable for the unpaid COLA increases and distributive award interest required by the stipulation.

A July 12, 2013 decision of Justice Sattler in this matter held that the fact that the father set his daughter up with her own apartment when not away at college could not be used by the father as a basis to discontinue making child support payments to the mother. That decision in Trepel v. Trepel, was the subject of my July 24, 2013 blog post. It is not stated whether the payments for the apartment were the voluntary payments made by the ex-husband which could not be used to offset other obligations.

Peter Bienstock, of Hennessey & Bienstock, LLP, of Manhattan, represented the ex-husband. Michael W. Appelbaum, of Grant & Appelbaum, P.C., of Manhattan, represented the ex-wife.