JengaOn June 12, 2018, the Court of Appeals in a 5-2 decision, affirmed the ruling discussed below.

It is common in agreements, and often the case in judicial decisions, for the parent paying periodic child support to receive a credit against those payments for college room and board expenses paid by that parent. May parties agree that the credit exceed the amount allocated by the parties to the support of the particular child attending college? No, (probably) said the Appellate Division, First Department, in its April 6, 2017 decision in Keller-Goldman v. Goldman.

The parties entered into a Stipulation of Settlement and Agreement that resolved all issues surrounding their separation. As may be relevant to the court’s determination, although the parties had four unemancipated children, the agreement only provided for support for the three children for whom the wife was deemed the custodial parent (the parties were to share equal time with these three). The husband retained custody of the fourth child, but agreed to receive no support for him from the mother. The opinion noted that had the parties not negotiated the issue of child support, the mother stood to collect $5,000 per month in child support payments, pursuant to the Child Support Standards Act, a fact acknowledged by the agreement. Instead, she agreed to monthly child support payments of $2,500.

Paragraph 10.3 of the parties’ agreement provided for a graduated reduction in the father’s child support payments upon the emancipation of each of the three children. Upon the first emancipation his monthly payment would be reduced by $350 to $2,150 per month; and upon the second emancipation the payment would be reduced to $1,462 per month.

The agreement provide for a room and board credit at paragraph 10.4, immediately following the support reduction schedule:

During the period in which a Child is attending a college and residing away from the residences of the parties and [the father] is contributing towards the room and board expenses of that Child, [the father] shall be entitled to a credit against his child support obligations in an amount equal to the amount [the father] is paying for that Child’s room and board. The credit shall be allocated in equal monthly installments against [the father’s] child support payments.


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Despite repeated efforts to bring predictability and consistency to temporary support awards, that goal remains elusive. Consider the December, 2017 decision of the Appellate Division, Third Department, in Rouis v. Rouis.

The parties were married in 1993 and had two children. After the husband departed the marital residence, the wife commenced this action for divorce in 2014. Applying the pre-2015 temporary maintenance formula on the wife’s motion for temporary relief, Sullivan County Supreme Court Justice Mary MacMaster Work granted the wife, among other things, temporary maintenance ($1,958 per month) and child support ($2,720 per month) and required the husband to pay for the carrying costs and upkeep of the marital home ($4,859 per month), private school for the youngest child ($848 per month), health insurance for the family ($1,921 per month), interim counsel fees ($10,000) and the wife’s vehicle and fuel costs ($644 per month). The husband appealed.

Recognizing that the combined monthly awards amounted to an annual award of $155,400 plus $10,000 in interim counsel fees, to be paid from the husband’s annual gross income of $183,300.50 (the wife’s pre-award income was $11,700.00), the Third Department agreed that the temporary awards were excessive and should be modified.

The appellate court noted that the (pre-2015) temporary maintenance formula resulted in a presumptive monthly temporary maintenance amount of $4,387.50. Justice Work also granted the wife’s request that the husband also pay the $4,859 in expenses, including the mortgage, taxes, utilities, insurance and upkeep. Justice Work recognized that it would not be equitable to require the husband to pay full maintenance, child support and all carrying costs on the marital home, and therefor essentially credited the husband for one half of the carrying costs on the home ($2,429.50 per month) by reducing the presumptive maintenance award by that amount, resulting in a temporary maintenance award of $1,958 per month. The lower court also ordered the husband to pay the full monthly carrying costs on the home ($4,859) in which he did not reside. The appellate court noted that when the wife’s vehicle expenses were added ($644 per month), the total combined monthly award was $7,461, plus tuition ($848 per month) and child support. The net effect of Supreme Court’s order was that the husband was ordered to pay the full presumptive maintenance award plus one half of the carrying costs on the home and the wife’s vehicle expenses.


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Calulator on 100s 6 redUntil the amendment of the Child Support Standards Act effective January 24, 2016 (D.R.L. §240[1-b][b][5][iii][I]; Laws of 2015, c. 387, §3), the rule had been that when a divorce court awards maintenance to a spouse, the amount of annual maintenance is to be deducted from the payor’s income when calculating parental income. However, for those same C.S.S.A. calculations, maintenance was not to be added to the recipient’s income. Thus, for example if in its award, a divorce court awarded a wife (the custodial parent) who had no other income $60,000 per year in maintenance from a husband earning $250,000 per year, the husband’s income for C.S.S.A. purposes would equal $250,000 less FICA, Medicare, and the $60,000 in maintenance, but the wife’s income would still be $0.

The recent amendment changed that anomaly. Effective January 24, 2016 , the alimony or maintenance actually paid or to be paid to a spouse is to be added to the income of the recipient when calculating parental income.

Although it does not expressly so state, it has been held that this amendment is to be applied to cases commenced on or after January 24, 2016, and not to cases commenced before that date. R.I. v. T.I., 2016 NY Slip Op 50664(U), 51 Misc. 3d 1215(A) (Sup. Ct. Kings 2016); C.G. v. F.G., 2016 NY Slip Op 26220, 53 Misc. 3d 229, 235-36, 34 N.Y.S.3d 882, 887-88 (Sup. Ct. Richmond 2016).

Until the amendment, the rule had been that it was error to include maintenance awards as income to the recipient when computing the child support obligation. Krukenkamp v. Krukenkamp, 54 A.D.3d 345 (2nd Dept. 2008); Wallach v. Wallach, 37 A.D.3d 707, (2nd Dept. 2007); Shapiro v. Shapiro, 35 A.D.3d 585 (2nd Dept. 2006); Lee v Lee, 18 A.D.3D 508 (2nd Dept. 2005).

In its November 9, 2016 decision in Castello v. Castello, the Second Department ruled differently. In that case, the court modified a 2013 divorce judgment by changing the child support calculation.


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In the absence of some other compelling factor, where a noncustodial parent’s child spends 33 to 40 percent of the time with that parent, a reduction in child support from the presumptively correct formula amount is not warranted. So held Ontario County Family Court Judge Stephen D. Aronson in his October 4, 2016 decision in T.M. v. J.K.

Here, the parties were the biological parents of one child born in 2001. The mother filed a petition seeking child support. Following a hearing, the support magistrate concluded that the father’s biweekly support obligation according to the Child Support Standards Act (CSSA) formula would be $396. However, the support magistrate also found that application of the CSSA formula would be inappropriate because the child spent at least 35 to 40 percent of the time with father. This, the support magistrate held, constituted an amount of time sufficient to justify deviating from the formula, awarding the mother $270 biweekly.

The mother filed objections to the support magistrate’s order, alleging that the significant discrepancy in the parties’ financial resources and the support magistrate’s misallocation of time spent with each parent warranted imposing the formula. Specifically, she contended that the father had more disposable income, fewer expenses, and more resources. She also asserted that she has more debt, including a credit card balance (consisting of charges needed to cover her expenses) and a large school loan. It was also noted that the father paid no child support (apparently by agreement) from 2006 through 2015. (The parties did not dispute the support magistrate’s formula calculation, although Judge Aronson found the amount to be incorrect.)


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Planning the budget
Planning the budget

To what extent, if any, should the courts look to step-parents and significant others to support the children of their mates? What effect should the financial arrangements between a parent and his or her new significant other (married or not married) have on the calculation of child support obligations?

Consider the November 4, 2015 decision of the Appellate Division, Second Department, in Geller v. Geller. In this case a father had petitioned for a downward modification of his $930/week child support obligation when two of his four children were emancipated.

After a hearing, Nassau County Family Court Support Magistrate Elizabeth A. Bloom determined that the father was now only required to provide support for the two youngest children, and then recalculated each parent’s pro rata share of the basic child support obligation pursuant to the Child Support Standards Act. When doing so, Magistrate Bloom also imputed income to the father for the various bills paid by the father’s employer. She determined that the father’s pro rata share of the basic child support obligation was $447 per week.

However, Magistrate Bloom deemed this amount to be “unjust or inappropriate” in light of the financial support the father was receiving from his girlfriend. Based on that, Magistrate Bloom increased the father’s formula support obligation by more than 45% to $650 per week ($33,800 per year). The father filed objections to the Support Magistrate’s order. His objections were denied by Family Court Judge Ellen R. Greenberg.


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In its August 19, 2015 decision in Hof v. Hof, the Second Department, almost matter-of-factly, addressed a number of pendente lite and pre-nuptial agreement issues.

To begin, the Court affirmed the determination of Suffolk County Supreme Court Justice John B. Collins, that after a hearing upheld the parties’ prenuptial agreement. By that agreement,

Calculator formulaOn June 24, 2015, the New York State Senate passed Bill A7645-2015 relating to the duration and amount of temporary and post-divorce spousal maintenance. The bill passed the State Assembly on June 15th. It awaits approval by Governor Cuomo.

The law’s formulas apply to actions commenced on or after the 120th day after they become law (except for the temporary maintenance formulas which apply to actions commenced on or after the 30th day after they become law). The new law may not be used as a basis to change existing orders and agreements.

The law will undoubtedly be the subject of numerous articles and legal seminars. Years of decisions will be forthcoming that particularly focus on matters of discretion, just as they followed the enactment of the Child Support Standards Act in 1989.

Before getting to the new formulas, the law eliminates a major thorn in side of the matrimonial bench and bar: When equitably distributing the assets of the parties, the court is no longer to consider as a marital asset the value of a spouse’s enhanced earning capacity arising from a license, degree, celebrity goodwill, or career enhancement (however, it may be condidered when making other distributive awards).

As to maintenance, the following highlights may be noted, many of which are contained in the Sponsor’s Memo:


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Gavel mainIn its February 18, 2015 decision in Dunleavy v. Dunleavy, the Second Department modified the order of Suffolk County Supreme Court Justice Carol Mackenzie by increasing the wife’s temporary maintenance award from $75 to $784.62 per week.

The Second Department noted that Domestic Relations Law § 236(B)(5-a) sets forth formulas for the courts to