It’s one of my pet topics. How do you provide — how do you write a provision awarding one spouse credit for paying down the mortgage principal while a divorce action is pending or thereafter?

Consider the August 29, 2018 decision of the Appellate Division, Second Department, in Westbrook v. Westbrook.

In April 2008, the wife commenced this action for a divorce and ancillary relief. In a pendente lite order, the Supreme Court, inter alia, directed the husband to pay temporary child support in the sum of $150 per week. The court also directed the husband to pay a majority of the carrying charges on the marital residence, which included a first mortgage on the two-thirds share of the value of the marital residence that had been purchased from the husband’s siblings, as well as a home equity line of credit (hereinafter HELOC) that was secured by the marital residence.

On or about November 24, 2009, the parties executed a stipulation agreeing, inter alia, that the husband would have exclusive use and occupancy of the marital residence effective December 1, 2009, and that the husband would pay child support to the wife in the sum of $350 per week commencing on December 1, 2009. Thereafter, the wife moved, inter alia, to increase the husband’s temporary child support obligation. In a pendente lite order dated May 21, 2010, the Supreme Court directed the husband to pay $700 per week in temporary child support during the pendency of the action.

Following the trial, as is here relevant, Suffolk County Supreme Court Justice Marlene L. Budd declined to award the husband a credit for the payments made by him during the pendency of the action to reduce the principal balances of the first mortgage and the HELOC. In addition, the court directed that the marital residence be listed for sale, and that the husband make the payments towards the first mortgage and the HELOC if he continued to reside in the marital residence until the residence was sold.

Continue Reading Calculating Divorce Credits for Mortgage and HELOC Payments

What is the effect of a divorce settlement stipulation provision, incorporated in the judgment of divorce, that calls for a specified reduction in child support upon the emancipation of one of the children of the parties?

The fact pattern is almost routine. For example, say the parties have three children, 14, 17 and 19. Their divorce settlement tracks the C.S.S.A. Upon the first emancipation (presumably when the 19-year old turns 21, or, perhaps graduates college according to the definition of emancipation in the agreement), the stipulation provides that the child support obligation will go from $2,900 per month to $2,500 per month (tracking the reduction in the formula obligation from 29% for three children to 25% for two children). Assume the full stipulation is incorporated by reference into the parties’ divorce judgment.

Continuing the example, assume that upon the first emancipation, the child support payor in fact reduces his/her payment from $2900 to $2500, but does not have that reduction established by a new court order. A year later, the support recipient goes into court to seek 12 months of $400/per/month arrears. What happens?

Consider last month’s decision of the Appellate Division, Second Department, in Beckmann v. Bedckmann. There, the parties’ 2012 divorce judgment incorporated, but did not merge with, their 2011 stipulation of settlement. The parties had agreed that the husband would pay $700 semi-monthly in basic child support for their two children. In April 2013, the parties’ daughter became emancipated under the terms of the stipulation, and shortly thereafter, the husband reduced his child support payments from $700 to $476 semi-monthly [I am going to dangerously assume that an agreement that defined emancipation would also provide what was to happen on emancipation].

Continue Reading Divorce Settlements that Provide for Reductions in Child Support upon Emancipation

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

A court gavel on 100 bills - legal concept

In its December 30, 2016 decision in Peddycoart v. MacKay, the Second Department reduced a father’s obligation to pay child support from $542 to $378 per week by holding that the Family Court should not have imposed the support obligation on the parents’ income in excess of the C.S.S.A. “statutory cap” (then $141,000).

The parties, who were never married, had one daughter together, born in 2009. The father signed an acknowledgment of paternity less than nine days after the child was born. The parties did not have an order of child support for approximately six years. In 2015, the mother filed a petition against the father seeking an award of child support. After a hearing, Support Magistrate Barbara Lynaugh determined that the mother had income of $36,112 and that the father had income of $166,096, for combined parental income of $202,208, exceeding the cap by $61,208.

Continue Reading Imposing Child Support on Income Over Cap Not Warranted

May the non-custodial parent deprived of seeing a child terminate his or her child support obligation? According to two March 16, 2016 decisions of the Appellate Division, Second Department, the result may turn on both who is to blame and how old is the child.

In Brinskelle v. Widman, and in response to his ex-wife’s post-divorce Family Court application for an upward modification of child support, a father asked to be relieved of his obligation to support the parties’ 18-year-old son on the ground that the son was emancipated within the meaning of the parties’ stipulation. The father also sought to terminate his support obligation for his 14-year-old daughter on the ground of constructive emancipation. After a hearing, Suffolk County Support Magistrate Denise Livrieri granted the mother’s petition and denied the father’s petition. Suffolk County Family Court Judge Bernard Cheng denied the father’s objections and the father appealed.

The Second Department affirmed. Under New York law, a parent is required to support a child until the child reaches the age of 21 (see Family Ct Act § 413[1][a]). However, a child may be deemed emancipated if he or she is fully self-supporting and financially independent from his or her parents. Alternatively, the parties may provide in a written agreement for emancipation contingencies. Here, the father failed to meet his burden to prove that the 18-year old son was emancipated as defined by the parties’ divorce stipulation of settlement: that the child had reached the age of 18, and was employed at least 30 hours per week, and was not a full-time student.

The father also argued that the parties’ 14-year old daughter was constructively emancipated. Here, despite the fact that it was not the father’s fault his 14-year old daughter was refusing to see him, she was not old enough to be punished. The father would remain liable to support her.

Under the doctrine of constructive emancipation, where a minor of employable age and in full possession of his or her faculties, voluntarily and without cause, abandons the parent’s home, against the will of the parent and for the purpose of avoiding parental control, he or she forfeits his or her right to demand support. However, “where it is the parent who causes a breakdown in communication with his or her child, or has made no serious effort to contact the child and exercise his or her visitation rights, the child will not be deemed to have abandoned the parent.”

Here, the Second Department held that even accepting the father’s testimony that the parties’ 14-year old daughter had voluntarily and without cause rejected his efforts to maintain a relationship with her in an attempt to avoid his parental control, the daughter was not “of employable age,” and thus, the father, as a matter of law, could not establish the daughter’s constructive emancipation.

Continue Reading Child Support and the Parent Deprived of Visitation