Unjust or Inappropriate

In addition to providing a guideline for the amount of a maintenance (alimony) award, New York’s relatively new maintenance (alimony) statute includes a presumptive range for the period of time maintenance is to be paid based upon the length of the marriage. Particularly with short marriages, what should be the impact of the length of the marriage on the award of maintenance while the divorce action is pending? Put differently, should a spouse be able to increase support, just by keeping the divorce action going?

In her August 31, 2017 decision in Barlik v. Barlik, Acting Queens County Supreme Court Justice Elisa S. Koenderman was faced with that issue.

Among the temporary relief sought by the parties in this divorce action, the parties husband cross-moved for exclusive use and occupancy of the marital residence. The wife moved, in part, for temporary maintenance and child support and for an order directing the husband to pay 100% of the carrying costs of the marital residence; an order appointing a forensic accountant to value the income from the husband’s business as well as a real estate appraiser to value the marital residence, both at the husband’s expense; and for counsel fees.

Justice Koenderman first denied the husband’s motion for exclusive use and occupancy, but granted the wife’s cross-motion for exclusive use and occupancy of the marital residence.

The Court then granted the wife’s motion for temporary maintenance and child support. As required by the statute, the court calculated the guideline amount by applying the statutory formula to the payor’s income up to the statutory cap of $178,000 (see DRL § 236[B][5-a][b][5] & [6]). Then, the court may adjust the guideline amount of temporary maintenance if it is “unjust or inappropriate” (DRL § 236[B][5-a][h][1]). The court must consider certain enumerated factors, including but not limited to the health and age of the parties; the present or future earning capacity of the parties; and care of children during the marriage that inhibits a party’s earning capacity, as well as any other factor which it finds just and proper to determine “whether and to what extent it will apply the statutory formula” to the payor’s income which exceeds the statutory cap.

Continue Reading Considering the Length of the Marriage and Other Factors on Temporary Support Awards

familyUnder what circumstances may a step-parent’s income and assets be considered by a court when deciding whether awarding the formula amount of support would be unjust or inappropriate? When may a court deviate from the formula because of a parent’s obligation to support the children of another relationship?

These were the issues discussed by the Appellate Division, Second Department, in its April 5, 2017 decision in Hall v. Pancho.

The parties, who were never married, had one child in common, age 11. After a hearing to determine the amount of the father’s modified child support obligation, Nassau County Family Court Support Magistrate Elizabeth A. Bloom found that were the formula set forth in the Child Support Standards Act (the CSSA) to be applied, the father’s pro rata share of the basic child support obligation would have been biweekly payments in the sum of $839.76. The father argued that the full formula should not be awarded because of his need to support the children of his marriage. Magistrate Bloom apparently agreed, deviating downward from the CSSA formula and determining the father’s child support obligation would be $425.00 biweekly. The mother filed objections to the Support Magistrate’s order, which were subsequently denied by Family Court Judge Thomas A. Rademaker. The mother appealed.

Continue Reading Considering a Step-Parent’s Income and Assets on Child Support Awards

In the absence of some other compelling factor, where a noncustodial parent’s child spends 33 to 40 percent of the time with that parent, a reduction in child support from the presumptively correct formula amount is not warranted. So held Ontario County Family Court Judge Stephen D. Aronson in his October 4, 2016 decision in T.M. v. J.K.

Here, the parties were the biological parents of one child born in 2001. The mother filed a petition seeking child support. Following a hearing, the support magistrate concluded that the father’s biweekly support obligation according to the Child Support Standards Act (CSSA) formula would be $396. However, the support magistrate also found that application of the CSSA formula would be inappropriate because the child spent at least 35 to 40 percent of the time with father. This, the support magistrate held, constituted an amount of time sufficient to justify deviating from the formula, awarding the mother $270 biweekly.

The mother filed objections to the support magistrate’s order, alleging that the significant discrepancy in the parties’ financial resources and the support magistrate’s misallocation of time spent with each parent warranted imposing the formula. Specifically, she contended that the father had more disposable income, fewer expenses, and more resources. She also asserted that she has more debt, including a credit card balance (consisting of charges needed to cover her expenses) and a large school loan. It was also noted that the father paid no child support (apparently by agreement) from 2006 through 2015. (The parties did not dispute the support magistrate’s formula calculation, although Judge Aronson found the amount to be incorrect.)

Continue Reading No Child Support Formula Reduction for Father Who Has Child 33-40% of Time

square peg2.jpgThere is a gap in New York’s child support statutes. They do not contemplate a custodial parent paying support to a non-custodial parent.

The Family Court Act does declare that both parents are chargeable with the support of their children. Moreover, the Family Court Act does not make a distinction between the “custodial” and “non–custodial” parents when declaring that parents of a child under the age of 21 years ,“if possessed of sufficient means or able to earn such means, shall be required to pay for child support a fair and reasonable sum as the court may determine.” F.C.A. §413(1)(a). (The Domestic Relations Law contains no such preamble to its section providing for an award of child support within matrimonial actions.)D.R.L. §240(1-b).

However, those same Family Court Act and the Domestic Relations Law provisions provide that awards of child support “shall″ be made “pursuant to the provisions” of those subdivisions. The subdivisions, then, set out the presumptive formula to determine awards of child support. The presumptive formula is to be varied only in the event the court finds, based upon factors specified, that the “non-custodial parent’s pro rata share of the basic child support obligation is unjust or inappropriate.” In all events, the statutes only contemplate support being paid by the non-custodial parent to the custodial parent.

Although the statutes carefully define many of the terms used, “non-custodial parent” is never defined. Thus, in ever-increasing scenarios, the courts have had to decide who is the “non-custodial.”

In Bast v. Rossoff, 91 N.Y.2d 723, 675 N.Y.S.2d 19 (1998), the Court of Appeals recognized that in most instances, the court can determine the custodial parent by identifying which parent has physical custody of the child for a majority of the time. In cases where the child’s time was divided approximately equally between the parents, the more-monied parent has been deemed the non-custodial parent because such a rule maximizes the benefits realized by the child at both homes. Baraby v. Baraby, 250 A.D.2d 201, 681 N.Y.S.2d 826 (3rd Dept. 1998).

Nonetheless, the best interests of a child may require an award of child support from the custodial parent to the non-custodial parent.

Take, for example, New York County Supreme Court Justice Ellen Gesmer’s February 29, 2012 decision in M.R. v. A. D. In that case, the court denied a father’s motion for summary judgment dismissing a mother’s claim for child support. In a painstaking decisionmade earlier in the case, Justice Gesmer (32 Misc.3d 512, 928 N.Y.S.2d 429) awarded the parents “parallel custody” of their 6-year old son with significant learning disabilities. After a through review of the evidence, and as neither parent was sufficiently better than other parent to warrant an award of sole custody, Justice Gesmer gave the father primary custody during school year, and gave the more permissive and disorganized mother primary custody during summer and other school breaks.

Continue Reading Awarding Child Support to the "Non-Custodial" Parent