Unallocated

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A court will not provide for a reduction in child support upon the emancipation of the elder of two children when the parties’ divorce settlement stipulation, itself, does not provide for one. So held the Appellate Division, First Department, in its 3-2 December 29, 2015 decision in Schulman v. Miller.

That settlement stipulation required the husband to pay unallocated periodic child support for the parties’ two children, plus cost of living adjustments, as well as other expenses of each child, including education and college. It did not provide for the reduction or recalculation of the husband’s child support obligation upon the emancipation of the older child. The agreement did not allocate the husband’s child support obligation as between the children, nor provide a formula for a reduction in the event of one child’s emancipation.

Affirming the order of Supreme Court, New York County Justice Lori S. Sattler, the appellate court noted that the settlement stipulation did provide for a termination or reduction of certain of the husband’s financial obligations upon the happening of specified events, including, for example, his obligation to pay maintenance to the wife, his obligation to maintain medical insurance for each child, payments for car service, and the like. Thus, the settlement provision concerning medical insurance explicitly stated that the husband “shall have the right to terminate such coverage for either Child at the time she becomes emancipated.” The parties’ stipulation of settlement was an exhaustive, 62-page document. Both parties were represented by counsel during its negotiation (indeed, the husband himself is an experienced attorney).Continue Reading Absent Provision in Divorce Agreement, No Reduction in Child Support on Emancipation of Elder Child

The emancipation of a child does not automatically result in the downward modification of an unallocated order of child support. Rather, the support payor has the burden of proving that the existing  amount of unallocated child support is excessive based on the needs of the remaining unemancipated children.

Such was the holding of the Appellate Division, Second Department, in its May, 2013 decision in Lamassa v. Lamassa.

In this case, the parties had entered into a stipulation of settlement of their divorce action that was read into the record. Then when the parties eldest child turned 18, the father unilaterally, and without a court order, reduced his child support payments. He then further reduced the amount of the support payments each time one of the parties’ remaining three children reached the age of 21 years.

Only then did the father move, in effect, to reduce the amount of child support payments and to cancel child support arrears accruing before that application.

At the hearing before Supreme Court, Richmond County Court Attorney/Referee Fay M. de Grimston, the father testified that as each of the children reached 21 years of age, he reduced the amount of support payments. He claimed that the mother had accepted the checks from him without objecting orally or in writing. The mother denied that she agreed to a reduction of the support payments. She claimed that she did not receive any checks directly from the father, but rather from the children. She asked the children to tell the father that the amount was wrong.

The mother also testified about an (unspecified) attempt to enforce the child support obligation. In addition, three of the parties’ children also testified and stated that the support checks were given to them to pass on to their mother; and that they never saw the father give checks directly to the mother (two of the children were still living with the mother at the time of the hearing).

The Referee concluded that the father was not entitled to a reduction in the amount of the support payments, or to cancellation of support arrears. The father had unilaterally reduced his support payments without court order, but had not provided credible proof of an oral agreement to modify the support obligation.

Affirming the determination that the father was not entitled to retroactive relief, the Second Department held that the father was not entitled to a reduction of the amount of child support payments, or a cancellation of child support arrears:

When child support has been ordered for more than one child, the emancipation of the oldest child does not automatically reduce the amount of support owed under an order of support for multiple children. In addition, a party seeking a downward modification of an unallocated order of child support based on the emancipation of one of the children has the burden of proving that the amount of unallocated child support is excessive based on the needs of the remaining children.

Continue Reading Emancipation Of One Child Does Not Automatically Result in a Downward Modification of Unallocated Child Support