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

It is common for the parents of young children when entering a divorce settlement agreement to defer until the children approach college age the determination of the parents’ obligations to contribute. The language chosen to express that deferral may be significant.

The recent decision of the Appellate Division, Second Department, in Conroy v. Hacker, lets us know the agreement language is significant. But we are left asking what would have happened without it.

In Conroy, the parties were married in 1991 and were the parents of two children. Their 1999 divorce judgment incorporated, but did not merge, a 1998 separation agreement. As relevant here, the separation agreement stated:

The parties are not making any specific provisions for the payment of college expenses which may be incurred on behalf of the infant children because of the tender age of said children as of the date of this Agreement. The parties do, however, acknowledge an obligation on each of their parts to contribute to the children’s future college expenses in accordance with their financial abilities at that time.

Continue Reading Enforcing the Divorce Settlement Agreement To Defer Fixing College Obligations

Father and Adult SonAt 18, the child becomes and adult. The parents no longer have custody. However, in New York, the parents’ duty to support does not end until the 21st birthday.

On other other hand, the parents’ duty to support may be relieved if a child attains economic independence through employment, entry into military service or marriage. Further, the child may be deemed constructively emancipated if, without cause, they withdraw from parental supervision and control.

Consider Baker v. Baker, a June 12, 2015 decision of the Appellate Division, Fourth Department. The parties’ son was constructively emancipated in June, 2012 when he moved out of the mother’s residence and into an apartment with friends in an effort to avoid the mother’s rules requiring him to attend school and not use illicit drugs. Until then, the father had been paying child support to the mother. However, after “being treated for withdrawal,” the son moved in with the father.

The question for the court was whether the child’s unemancipated status was revived entitling the father to collect child support. Supreme Court, Niagara County Justice Catherine R. Nugent-Panepinto denied the father’s application.

The Fourth Department reversed. The appellate court agreed with the father that the lower court erred in concluding that the child’s return to parental custody and control neither revived his unemancipated status, nor reinstated the support obligations of his parents

A child’s unemancipated status may be revived provided there has been a sufficient change in circumstances to warrant the corresponding change in status. . . . Generally, a return to the parents’ custody and control has been deemed sufficient to revive a child’s unemancipated status.

Although most of the cases concerning a revival of a child’s unemancipated status have involved a child’s return to the home that he or she abandoned versus the home of the noncustodial parent, the Fourth Department concluded that the return to the noncustodial parent’s supervision and control does not preclude a revival of unemancipated status.

The mother argued that because the father had stipulated to the earlier order that the child was emancipated, therefore termination the father’s support obligation, the father was required to establish an unanticipated and unreasonable change of circumstances. However, the Court held that despite the father’s stipulation that the child was emancipated, the child is not bound by the terms of that agreement, and the issue in this case was the child’s right to receive adequate support. Even assuming, arguendo, that the father was required to show an unanticipated and unreasonable change of circumstances, the appellate court would nevertheless have concluded that the child’s substance abuse treatment and return to parental custody and control constituted such a change of circumstances.

In our view, the reversion to unemancipated status under the facts of this case would promote the underlying statutory principles requiring parents to support children until they reach the age of 21.

The Fourth Department therefore reversed, granting that part of the father’s motion seeking an award of child support; remitting the matter to Supreme Court to calculate the amount of child support owed by the mother to the father.

Catharine M. Venzon, Esq., of Venzon Law Firm PC, of Buffalo, represented the father. Leonard G. Tilney, Jr., Esq., of Lockport, represented the mother.