In its decision this month in Vaysburd v. Vaysburd, the Appellate Division Second Department reminded us that once a parenting stipulation or order is entered, child support will not be affected until the stipulation or order is modified. This is true, even if the support award is made in the same divorce action in
What is the significance in a divorce settlement agreement of the parents’ decision to apply the child support formula to all of the parents’ income in excess of the statutory “cap?” How will such an agreement affect a subsequent modification proceeding?
Such was the issue addressed in last week’s decision of the Appellate Division, Second Department, in Matter of Monaco v. Monaco, 2023 NY Slip Op 01091, 2023 N.Y. App. Div. LEXIS 1093, 2023 WL 2290584 (2nd Dept. 2023).
The parties were married in 1996 and have three children. In 2013, the parties executed a stipulation of settlement that was incorporated but not merged into their judgment of divorce. The agreement fixed the father’s biweekly child support obligation at $1,618.02. In doing so, the parties had agreed to apply the 29% Child Support Standards Act (C.S.S.A.) statutory percentage to their total combined parental income of $185,980.
In September 2020, the father filed a petition seeking a downward modification and the mother filed a petition for an upward modification. By order dated December 3, 2021, Support Magistrate Darlene Jorif-Mangane granted the father’s petition. The Magistrate found that the parties’ combined parental income was $251,708.46 and exceeded the then statutory cap of $154,000.00. The father’s child support obligation on the combined parental income up to the statutory cap was the sum of $1,220.00 biweekly for 3 children, and $1,051.00 biweekly for 2 children [1 child having been emancipated prior to the hearing].Continue Reading The effect of divorce settlement agreements on child support modification proceedings
The mother had refused to agree to the vaccination of the children, resulting in one child being prohibited from school. In a March 30, 2022, decision in Matter of Soper v. Soper, the Appellate Division, Second Department, affirmed the modification of a custody stipulation to give the father sole decision-making authority with regard to the children’s medical care.
The parties were the formerly-married parents of three children. Pursuant to their 2018 custody and parental access stipulation that was incorporated but not merged into their 2019 judgment of divorce, the parties agreed to joint legal custody of the children. They agreed to defer medical decisions for the children to specified pediatricians.Continue Reading Refusal to Vaccinate Children Results in Change of Decision-Making
It is not rare, and may be commendable, to resolve child support obligations based upon anticipated future circumstances: an expected job, obtaining a degree or license, etc. However, when doing so, care must be taken to anticipate not meeting those expectations. When is relief available? The issue is complicated if the parties “opt out” of the statutory ability to seek a modification upon a 15% change in income or three years from the support order.
Consider the 2021 decision of the First Department in Matter of Solomon M. v. Adelaide M., 192 A.D.3d 424, 142 N.Y.S.3d 542. There, at the time the parties entered their child support stipulation, the husband was unemployed and had no income. When the husband later obtained a job, the husband complained his take home pay was inadequate to cover his agree-upon support obligations.
The husband petitioned the Family Court for a downward modification. Bronx County Support Magistrate Shira Atzmon denied the husband’s petition. The Magistrate noted that the husband’s financial situation and potential earning capabilities had actually improved by the time of his petition as compared with the time of the stipulation he sought to modify. By the time of his petition, the husband had earned an MBA and was earning approximately $30,000 per year. Bronx County Family Court Judge Phaedra Perry denied the husband’s objections to the Magistrate’s order. The Appellate Division, First Department, affirmed.Continue Reading Anticipating Future Finances when Agreeing to Support Obligations
It is common for child support to continue to be paid while a child is away at college. A child often will return home for perhaps four months of the year. What happens when the student just stays there year round?
Often in divorce stipulations of settlement, the parties will define when a child will be deemed emancipated terminating the child support obligation. One of those occasions is often a permanent change of residence of the child away from the residence of the deemed custodial parent.
It is common for such a change of residence to exclude one occasioned by a child’s attending college away from home. Such reflects that the custodial parent must have shelter available; and pay for food and other expenses while the child is home. Often, expenses for clothing, entertainment, and other items are paid year round. Sometimes a credit is given against the periodic support obligation for all or some fraction of the room and board expenses paid by child support payor.
What happens when a child simply does not return home while attending college? That was the issue presented to Nassau County Family Court Support Magistrate Sondra Toscano in Matter of Anthony C. v. Alison C., 2021 N.Y.Misc. Lexis 3115.Continue Reading Terminating Child Support While Child Away at College
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.”Continue Reading A Child Support Redetermination Is Warranted If a Stated Reason Parties Deviated From CSSA No Longer Applies
When negotiating a divorce settlement agreement, the parties should agree on whether or not all child support-related rights and obligations must be redetermined in the event the periodic basic child support obligation is modified.
Take the recent Appellate Division, Second Department, decision in Walsh v. Walsh. There the parties’ settlement agreement was incorporated, but not merged into their 2014 judgment of divorce. Under that agreement, the father was to pay $500 per month in child support.
After the parties divorced, the father began collecting Social Security benefits in addition to his salary, which caused his income to increase by more than 15%. In their agreement, the parties did not opt out of allowing the court to modify the support order, without requiring a party to allege or demonstrate a substantial change in circumstances, where either party’s gross income changed by 15% or more since the order was entered or modified. The mother petitioned for an upward modification of the father’s child support obligation.
Family Court Suffolk County Support Magistrate Kathryn L. Coward granted the upward modification on the basis of the father’s increased income. Calculating the father’s child support obligation under the Child Support Standards Act, the Magistrate awarded the mother $2,074 per month in child support.
The father objected to the Support Magistrate’s order. Family Court Judge Matthew G. Hughes denied the father’s objections. The father appealed. The Second Department affirmed.Continue Reading Are The Various Types of Child Support Benefits Interrelated?
Two recent decisions of the Appellate Division, Second Department, have upheld maintaining a father’s child support obligations despite alleged changes to the nature of the relationship with the child.
in Lovaglio v. Wagner, the father contended that the parties’ then 20-year-old daughter had moved in with him when she entered college. Previously, the daughter resided with the mother in New Jersey since she was 5 years old. However, the father claimed that she began residing with him full-time in Brooklyn after she enrolled in a college in Manhattan during the winter 2015 semester.
After a hearing, Support Magistrate John M. Fasone held that the father failed to establish that the daughter’s residence had changed and denied the father’s petitions to terminate his child support obligation and to receive child support from the mother. In its November 22, 2017 decision, the Second Department affirmed the order of Kings County Family Court Judge Judith Waksberg that had denied the father’s objections to Magistrate Fasone’s order.Continue Reading Child Support Obligations Do Not Automatically Result Upon Relationship Changes
Under Family Court Act §413-a, a party receiving public assistance, or making use of the State’s Child Support Enforcement Services, may request that the Support Collection Unit (“SCU”) review the order for an adjustment of a child support order in the event that there is a 10% change in the cost of living. The SCU, calculates the new order and mails it to the parties. If there is no objection, the adjusted order becomes final without further review by a court.
Either party, however, may object to the cost-of-living adjustment by making an application to the court. Where an objection is timely filed, the cost of living adjustment does not take effect, and after a hearing, the court may issue a new order of support determined in accordance with the Child Support Standards Act, or make a determination that no adjustment is appropriate. Notably, “Any order of support made by the court under this section shall occur without the requirement for proof or showing of a change in circumstances.” F.C.A. §413-a(c)
In Tompkins Cty. Support Collection Unit ex rel. Chamberlin v. Chamberlin, 99 N.Y.2d 328, 756 N.Y.S.2d 115, 786 N.E.2d 14 (2003), the Court of Appeals determined that F.C.A. §413-a authorizes the Family Court to review and adjust the underlying support order in accordance with the C.S.S.A., and not merely to decide whether or not the COLA amount should be applied.Continue Reading Reconciling SCU COLA Adjustments With Modification Cases
On 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:Continue Reading Legislature Passes Spousal Maintenance (Alimony) Formula