It’s worthy of note when enough information is provided in an appellate decision to see “how” maintenance and child support were computed. The May 6, 2015 decision of the Appellate Division, Second Department, in Sawin v. Sawin, provides such an opportunity.
In Sawin, the parties were married in 1988 and had three children.
In 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
Is a wife entitled to formula temporary maintenance in a divorce action, merely because she is the less-monied spouse? No, says New York County Supreme Court Justice Matthew F. Cooper in his October 22, 2014 decision in Joseph M. v. Lauren J.
In this matrimonial action, the wife sought temporary custody of the parties’ child, as well as an order awarding her pendente lite maintenance, child support, and counsel fees. Although the custody applications were premature, the financial issues were ripe for determination.
In many ways, this case highlights the tension that exists when imposing a statutorily prescribed formula for awarding temporary maintenance on a determination that has traditionally been left to the sound discretion of a court.
The parties were married in 1997 and had one child, a daughter, born in 2009. The couple separated eight months after the child’s birth when, in May 2010, the wife left the marital residence in Yonkers to live with a man with whom she had been involved since before the pregnancy. The wife continued to reside with this man and was largely supported by him for almost four years. They recently stopped living together because their church objected to them continuing to cohabit while she was still married to the husband. As a result, the wife had been living for the last few months in a hostel in upper Manhattan.Continue Reading Temporary Maintenance All But Denied to Wife Able to Work and Who Had Lived With Another Man
The required C.S.S.A. recitation in an oral open-court stipulation by which the parties explain why they have agreed to a child support obligation varying from the presumptive C.S.S.A. formula may not have to be as “precise” as that required in a written stipulation. Such appears to be the holding of the Appellate Division, Second Department, in its January 22, 2014 decision in Rockitter v. Rockitter.
On August 9, 2010, the parties had entered two stipulations to settle their divorce action. A written stipulation covered the parties’ joint custody of their two daughters. The second stipulation was oral, made on the record in open court and concerned child support and equitable distribution. Both stipulations were subsequently incorporated, but not merged, into the parties’ judgment of divorce.
Approximately 18 months later, the ex-wife commenced this action seeking to vacate the child support provisions of the oral support stipulation and the judgment of divorce. The ex-wife alleged that the support stipulation failed to comply the Child Support Standards Act because the parties did not make the required recitation of the reasons they chose to deviate from C.S.S.A. guidelines. Nassau County Supreme Court Justice Norman Janowitz granted the ex-husband’s motion to dismiss the complaint. The Second Department affirmed.
The C.S.S.A. requires that any agreement varying its presumptive child support formula contain specific recitals:
Continue Reading C.S.S.A. Recitiation Requirements Relaxed for In-Court Child Support Sipulation
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.
The First Department, in its February 19, 2013 decision in David v. Cruz, threw out an entire settlement agreement because of its failure to include language required by the Child Support Standards Act.
The C.S.S.A. sets out a presumptive formula for the calculation of a parent’s child support obligation.
Parents are free to agree to vary the formula and fix their own base periodic child support obligation. They may also fix the parents’ respective liabilities for addition health care, child care and add-on expenses, if not others. However if they so agree, the parents must recite in their agreement what would have been the results had the presumptive statutory formula been applied.
As noted by the First Department, an agreement purporting to opt out of the presumptive basic child support obligations set forth in the Child Support Standards Act must include a provision stating that the parties have been advised of the provisions of the C.S.S.A., must specify the amount that the basic child support obligation would have been, and must state the reason or reasons for the deviation (Family Court Act § 413 [1] [h]; Domestic Relations Law § 240[1–b][h]). That required recitation may not be waived by either party or by counsel.Continue Reading Settlement Agreement’s Failure to Include C.S.S.A. Recitation Invalidates Entire Agreement
Two decisions last month of Queens County Supreme Court Justice Pam Jackman Brown provide insights on how courts might cope with the overlap of the statutory temporary maintenance formula and the payment of marital residence carrying charges.
Yesterdays blog reported upon the Second Department’s November 21, 2012 agreement in Woodford v. Woodford with the First Department in Khaira v. Khaira that the statutory temporary maintenance formula is intended to include the portion of marital residence carrying costs attributable to the nonmonied spouse.
In the November 5, 2012 decision in Liebman v. Liebman, Justice Jackman Brown balanced the factors presented by directing the husband to continue to make the marital residence carrying charge payments, but deducting the full amount of those charges from the presumptive maintenance formula.
The wife had sought an award of temporary maintenance based upon husband’s 2011 W-2 income. The wife also asked that in addition to the calculated temporary maintenance sum, the husband should be directed to continue to pay the maintenance, mortgage and carrying charges on the marital residence.
The Court found that the presumptive temporary maintenance award would be $6,337.70 monthly. However, under the facts presented, Justice Jackman Brown found that the presumptive award would be unjust or inappropriate. Specifically, the Court adjusted the presumptive temporary maintenance award after considering factor: (q) any other factor which the court shall expressly find to be just and proper.
The Court noted that the statute is silent regarding whether the Court shall order the presumptive maintenance award in proceedings in which the payor spouse has agreed or is directed to maintain the mortgage and/or carrying charges on the marital residence. In Liebman, it was undisputed that the husband had been paying the carrying charges, including the mortgage, maintenance and insurance, in the sum of $1739.91 monthly.
The Court deducted the sum of $1,739.91 from the husband’s presumptive monthly temporary maintenance obligation $6,337.70, and awarded the wife $4,597.79 monthly. The Court also directed the husband to continue to pay the mortgage, maintenance and insurance on the marital residence.Continue Reading Temporary Maintenance Awards and Marital Residence Carrying Charges: Justice Jackman Brown Weighs In
The statutory temporary maintenance formula is intended to include the portion of marital residence carrying costs attributable to the nonmonied spouse. So concluded the Appellate Division, Second Department in its November 21, 2012 decision in Woodford v. Woodford.
Accordingly, the appellate court vacated so much of Suffolk County Supreme Court Justice James F. Quinn
In the first appellate decision to apply the October 12, 2010 temporary maintenance amendment to the Domestic Relations Law, it was held that the recipient’s share of marital residence carrying charges is within the temporary maintenance award, itself. It was improper to have the payor spouse pay carrying costs directly in exhange for a credit against income before calculating maintenance.
In the February 7, 2012 decision in Khaira v. Khaira, the Appellate Division, First Department, considered the breadth of D.R.L. §236B(5-a). No longer was the temporary (pendente lite) maintenance award used simply to “tide over the more needy party,” but rather to provide “consistency and predictability in calculating temporary spousal maintenance awards.” The amendment “creates a substantial presumptive entitlement.”
The First Department modified the April 1, 2011 order of New York County Supreme Court Justice Deborah A. Kaplan. In the case before it, Justice Kaplan had “properly followed the initial procedures” to determine that the presumptive temporary maintenance award would be $138,000.00 per year ($11,500.00 per month), at least based on the husband’s first $500,000.00 of income. Justice Kaplan, then, analyzed the reasonable needs of the wife and children after taking into account husband’s payment of the mortgage and health insurance and expenses. Justice Kaplan, then, awarded the wife $13,870.00 in monthly unallocated spousal and child support payments, in addition to requiring the husband to pay the $5,317.00 monthly mortgage payments and the family’s $855.00 monthly health care premiums and medical expenses. The award and expenses totaled $20,041.00 per month. Justice Kaplan, however, did not discuss the factors required by the amendment to be considered when making an award in excess of the formula applied to the first $500,000.00 of a spouse’s income.
Before remanding the issue to Justice Kaplan for redetermination, the First Department focused on the “suggestion” inherent in her decision “that the formula was intended to cover the support needs of the non-monied spouse, such as food and clothing, but not the cost of the mortgage payments for her residence.” However, because any specific reference to the carrying charges for the marital residence was absent from the temporary maintenance formula amendment, the First Department considered:
[It was] reasonable and logical to view the formula adopted by the new maintenance provision as covering all the spouse’s basic living expenses, including housing costs as well as the cost of food and clothing and other usual expenses.
The First Department noted that prior to the amendment, it was common to award support both in cash payments to the spouse as well as to third-parties. That practice was “not only eminently reasonable, but also the most expedient way of covering payment of the necessities, and protecting the home as a marital asset.” The “new approach” changes that, instead awarding “the amount that will cover all the payee’s presumptive reasonable expenses.”
The First Department did not rule out the possibility of a direct mortgage payment, but, as required by the statute, only after the analysis of income in excess of the $500,000.00 cap was made.
The impact of this decision is clear. However, it also reveals the lack of logic in the remaining support calculations required by the various support provisions.Continue Reading Appellate Decision Clarifies Temporary Maintenance Calculations; Temporary Child Support Awards Must Be Next
On October 25, 2011 the New York State Law Revision Commission held a round-table discussion to review New York’s spousal support, i.e. “maintenance” statute, Domestic Relations Law §236(B)(5-a, 6). The discussion precedes a final report which that Commission is required to render under a mandate imposed by the Legislature when new laws concerning temporary maintenance, interim counsel fees and no-fault divorce were adopted last year. In part, the Commission was charged to:
review the maintenance laws of the state, including the way in which they are administered to determine the impact of these laws on post marital economic disparities and the effectiveness of such laws and their administration in achieving the state’s policy goals and objectives of ensuring that the economic consequences of a divorce are fairly and equitably shared by the divorcing couple . . . .
Lee Rosenberg, chair of the Nassau County Bar Association Matrimonial Law Committee, noted that last week’s round-table discussion revealed a gap in opinions. Those advocating for lower income women and domestic violence victims believed that the interim temporary maintenance statute enacted last year should remain in effect, with permanent guidelines leaving little to judicial discretion needed as well. The rest of the attorneys and judges believed a “one size fits all” formulaic approach did not work, created more litigation and did not do justice for both parties.
Mr. Rosenberg commented that if there was any majority view, it was that the temporary maintenance statute needed a major overhaul or complete repeal, except perhaps in lower income cases. Courts should retain real discretion to consider long-established factors in making any award, temporary or final.
A Preliminary Report on Maintenance Awards in Divorce Proceedings (Law Revision Report on Maintenance May 11 2011.pdf) was issued by the Law Revision Commission on May 11, 2011. That Report concluded that the 2010 temporary maintenance law sparked “intense debate over whether a formula should be used to calculate temporary maintenance.” To pursue its mandate, the Commission is reviewing reported appellate and trial court decisions awarding or denying temporary and/or final maintenance over the past 14 years. The Preliminary report presented a summary of the most recent decisions.
Posts in this blog on March 23, April 5 and July 18 considered recent awards under the new temporary maintenance statute, criticizing the absence of a “reality check” in two of those decisions.Continue Reading Spousal Maintenance Statute Difficulties Noted by New York's Law Revision Commission