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

Two of three November 5, 2014 custody decisions of the Appellate Division, Second Department, reversed Family Court determinations.

In the only affirmance in Mondschein v. Mondschein, the Second Department upheld the order of Westchester County Family Court Judge David Klein which, after a hearing, granted a father’s petition to modify the custody provisions of the parties’ divorce (2011) stipulation of settlement, awarding the father sole legal and physical custody of the parties’ two younger children, with supervised visitation to the mother. Affirming Judge Klein, the Second Department noted:

Since custody determinations necessarily depend to a great extent upon an assessment of the character and credibility of the parties and witnesses, deference is accorded the Family Court’s findings. Therefore, its findings should not be set aside unless they lack a sound and substantial basis in the record.

Here, contrary to the mother’s contention, the appellate court found that Judge Klein had properly considered the totality of the circumstances, and that the record supported his determination that there had been a sufficient change in circumstances requiring a change in custody to protect the best interests of the parties’ two younger children. That record included the hearing testimony and the recommendation of the court-appointed forensic evaluator.

In Burke v. Cogan, the Second Department reversed the determination of Suffolk County Family Court Judge Martha Luft that had dismissed the petition of a mother to modify a prior custody order by awarding her sole residential custody of the parties’ 13 year-old child. The appellate court awarded the mother such custody.

Continue Reading Appellate Reversals of Custody Decisions

Father and daughter.jpgParents sometimes enter child support agreements which track the presumptive formula set out in New York’s Child Support Standards Act (Family Court Act §413; Domestic Relations Law §240[1-b]). However, parents in their agreements often deviate from the presumptive formula to reflect various considerations. That deviation for a married couple may reflect the delicate balancing of property rights, spousal maintenance and child support.

For example, parents may reduce the presumptive child support amount where the child(ren) spend more time with the “non-custodial” parent than what might be considered the “normal” alternate weekends and a mid-week dinner.

May the non-custodial parent’s failure to fully exercise visitation rights under an agreement serve as a basis to increase child support?

In its July 11, 2012 opinion in McCormick v. McCormick, the Appellate Division Second Department said, “Yes.” It found that the substantial reduction in a father’s visitation with his child warranted an upward modification of the father’s child support obligation. That reduction in visitation provided the substantial change in circumstances needed to justify a support modification.

[T]he mother established that an increase in the father’s child support obligation was warranted by a change in circumstances … Specifically, the substantial reduction in the father’s visitation with the child, which significantly reduced the amount of money the father was required to spend on the child, “constituted an unanticipated change in circumstances that created the need for modification of the child support obligations.”

The Second Department was quoting from the 2002 decision of the Court of Appeals in Gravlin v. Ruppert, 98 NY2d 1, 743 NYS2d 773. That case also addressed a father’s failure to live up to his scheduled substantial parenting time.

Continue Reading Father's Failure To Visit Child Is Grounds To Increase Child Support

Gavel main.jpgIn a stipulation which settled a prior dispute between parents, the father agreed to pay child support. The mother had sole custody of the parties’ child.

The father thereafter commenced a Nassau County Family Court proceeding to terminate his child support obligation. Upon the mother’s motion, Support Magistrate Penelope Beck Cahn dismissed the father’s petition. Family Court Judge Edmund Dane denied the husband’s objections to the Magistrate’s ruling.

Last week, in Singer v. Prizer, the Appellate Division Second Department affirmed. The court held that the father’s agreement not to “bring on any application to . . . modify” his agreed-upon child support obligation precluded the father from commencing the proceeding below. The Second Department held:

the cause of action alleged in the petition was “completely undermined and rendered legally insufficient by the very terms of” the stipulation.

The Court did not expressly state whether it was construing the husband’s waiver of the right to apply for a modification as a waiver of the right to seek a complete termination of the child support obligation. There was no mention of a provision of the parties’ stipulation which barred a proceeding to completely terminate the child support obligation.

Handshake 1.jpgParticularly when it comes to agreements fixing child support obligations, “shaking on it” is simply not enough.

Both the Domestic Relations Law and the Family Court Act authorize parents to enter agreements which establish their child support obligations. DRL §§236B(3) and 240(1-b)(h) and FCA §413(1)(h) set out many requirements for such agreements.

Nothing suggests that modifications of such agreements are any less prescribed. Indeed, a “belt and suspenders” approach calls for nothing less than a fully-restated support obligation agreement to implement the slightest change to which parents agree.

Consider the March 29, 2012 decision of the Appellate Division, Third Department, in Hirsch v. Schwartz. The parties’ 2007 separation agreement was incorporated into and survived their 2009 judgment of divorce. It required the father to pay 96% of all child-care expenses for the parties’ two children. Shortly after the divorce, the mother sent the father a letter offering to  reduce the father’s child-care expenses from 96% to 75%. Although the father did not sign and return the letter, he made at least two full reimbursement payments and several partial payments in the months that followed.

The mother subsequently commenced a Saratoga County Family Court proceeding to enforce the child support provisions of the original judgment of divorce. The father argued that the mother’s letter offer served to modify his support obligations and that the terms of this subsequent agreement should be enforced. Following a trial, the Support Magistrate found that the letter offer did constitute a valid modification of the parties’ separation agreement; the father’s child-care share of expenses was reduced to 75%. However, upon the mother’s written objections, Family Court Judge Gilbert Abramson concluded that the Support Magistrate lacked the authority to enforce the terms of the purported modification agreement. Therefore, the original provisions of the judgment of divorce concerning the father’s child-care obligations controlled.

The Third Department affirmed, holding that the Family Court, as a court of limited jurisdiction, may only enforce or modify child support provisions contained in a valid court order or judgment. Thus, even assuming that the mother’s letter offer constituted a valid modification of the parties’ separation agreement, the Family Court “does not have subject matter jurisdiction [to] enforce the amended agreement which stands as an independent contract between the parties.”

It is noted that the Appellate Division, Second Department, in its April 24, 2012 decision in Tammone v. Tammone, also held that “the Family Court did not have jurisdiction to make a declaration as to the validity of an alleged oral modification of a separation agreement.”

The Third Department in Hirsch did not discuss whether the father might have a separate contract remedy enforceable in Supreme Court to recoup any “over-payments.” However, perhaps the lesson to be learned is that nothing less than a fully-restated court-approved child support agreement is sufficient to put into effect the slightest of modifications. Thus, among other provisions, the restated modification agreement should:

  • be in writing;
  • be signed by the parties;
  • be acknowledged before a notary public;
  • include a provision stating that the parties were advised of the provisions of the CSSA (Child Support Standards Act) and that the basic amount of child support provided for in the CSSA would “presumptively result in the correct amount of child support to be awarded”;
  • set forth the amount that the basic child support obligation would have been and the reasons why the parties may not have provided for the CSSA amount in their agreement or stipulation;
  • contain opting-out language limiting future modifications;
  • contain recitations regarding enforcement methods; and
  • contain, or at least reference and reaffirm all other related agreement provisions such as emancipation, health insurance and expenses, child care and college.

Then, the agreement should be submitted, on consent, to the Supreme Court to obtain a modified divorce judgment or order of support.

Yes, all this means that lawyers, for both parents, must be re-involved. However, nothing less will give peace of mind.

Anne Reynolds Copps of Albany represented the father. Jennifer P. Rutkey, of Gordon, Tepper & DeCoursey, L.L.P., of Glenville represented the mother.