Support Magistrate Barbara Lynaugh

A January 9, 2019 decision of the Appellate Division, Second Department, may foreshadow an increase in support enforcement proceedings in Family Court, or promote the current payment of child support obligations, or both.

In Mensch v. Mensch, the court reversed an order of Suffolk County Family Court Judge Kathy G. Bergmann that denied a mother’s objections to the denial of a counsel fee award by Support Magistrate Barbara Lynaugh.

The parties were the parents of five children. In December 2017, the mother filed a child support enforcement petition alleging that the father failed to pay $1,635 in child support from April through August, 2017. The support obligation was based on a so-ordered stipulation of settlement that survived the parties’ Judgment of Divorce.

Shortly after the petition was filed, the father paid the mother the amount sought in the petition. The mother thereafter moved for an award of the attorneys’ fees she incurred in commencing this enforcement proceeding.

Magistrate Lynaugh denied her motion. The mother filed objections that were denied by Judge Bergmann.

Reversing, the Second Department held that the denial of an award of attorneys’ fees to the mother was an improvident exercise of discretion. The father paid the arrears demanded, but only after the mother was forced to expend attorneys’ fees to commence an enforcement proceeding.

The court rejected the father’s argument that he was engaged in a dispute over whether he should be credited for payments for cell phone expenses and college expenses paid before the entry of the parties’ judgment of divorce. However, that dispute did not authorize the father to engage in self-help by withholding child support payments that he ultimately did not dispute were due and owing.

Accordingly, the mother was entitled to an award of attorneys’ fees and the matter was remitted to the Family Court to determine the amount of the mother’s reasonable attorneys’ fees incurred in connection with this proceeding.

Michael J. Miller, of Heilig, Branigan, Miller & Castrovinci, of Holbrook, represented the mother. Karen D. McGuire, of McGuire Condon, P.C., of Huntington, represented the father.

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

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