Archive for the ‘Child Support Standards Act’ Category
Sunday, November 1st, 2009
I have previously written about various child support issues, here, here, here and here. While the number of issues is substantial, one situation that comes up periodically, is the one where the non-residential parent earns a substantial income, placing the combined parental income well in excess of the basis economic support under the Child Support Standards Act. While the income limit for basic economic support under the CSSA is about to increase substantially, what happens in situations where the nonresidential parent earns several hundred thousands dollars or more per year?
In a recent decision, Jackson v. Tompkins, 2009 N.Y. Slip. Op. 06550 (2nd Dept. 2009), the Appellate Division, Second Department, held that in high income cases, appropriate determination under F.C.A. §413(1)(f) for an award of child support on parental income in excess of $80,000 should be based upon child’s actual needs and amount required for child to live an appropriate lifestyle, rather than upon wealth. See, Brim v. Combs, 25 A.D.3d 691, 693 (2nd Dept. 2006). The Appellate Division affirmed the Family Court’s order which directed that the father pay $6,700 in monthly child support.
The above decision is consistent with the prior cases, such as Cassano, and its progeny. The Appellate Division cited Brim v. Combs in reaching its holding. That case makes for an interesting reading since the respondent in Brim v. Combs was Sean “Puffy” Combs. In Brim, the mother’s net worth statement and her extensive testimony at the hearing established that her expenses related to the child were $19,148.74 per month, exclusive of the child’s educational, health, medical, dental, school transportation, school supplies/books, security, and summer camp expenses, which in any case are paid by the father. The court further noted that this amount was deemed admitted as fact by the father due to his failure to comply with the compulsory financial disclosure requirements of Family Court Act § 424-a. Accordingly, the Appellate Division held that the Family Court erred in awarding $35,000 in monthly child support to the mother. Instead, the mother should have been awarded monthly child support in the sum of $19,148.74 to satisfy the child’s actual needs and to afford him an appropriate lifestyle (see Family Ct Act § 413).
Thus, if you earn a substantial income and you are obligated to pay child support, your family law attorney would do well to know what are the child’s needs and what are the actual expenses associated with child, and be prepared to challenge any unsubstantiated claims at a hearing.
Tags: attorney, child support, child support guidelines, Child Support Standards Act, county, Domestic Relations Law, Family Court, Family Court Act, Family Law, income, lawyer, Livingston, Monroe, new york, New York family law, Ontario, order, Orleans, rochester, Supreme Court, Wayne
Posted in child support, child support enforcement, Child Support Standards Act, court orders, Family Court, Family Law, imputed income, New York Law | No Comments »
Sunday, September 27th, 2009
New York’s child support statute has been long criticized for its its $80,000.00 cap on the basic economic child support. The critics have argued that since the statute was enacted approximately 20 years ago, the basic economic child support cap figure was too low. New York Legislature apparently heard those concerns. Laws of 2009, Chapter 343 enacted the “child support modernization act” which amended the provisions of the Child Support Standards Act to raise the cap on combined parental income to $130,000.00, effective January 31, 2010, and to provide for the adjustment of the $130,000.00 cap every two years to reflect changes in the Consumer Price Index. The child support percentages of payments that non-custodial parents are obligated to make toward child support were not modified by the amendments. Domestic Relations Law §240 (1-b) (2) and Family Court Act §413 (1) (c) (2) were each amended to provide that the court shall multiply the combined parental income up to the amount set forth in Social Services Law §111-i, (2) (b). Social Services Law §111-i (2)(b) provides that the combined parental income amount to be reported in the child support standards chart and utilized in calculating orders of child support in accordance with Domestic Relations Law §240 (1-b) (2) and Family Court Act §413 (1) (c) (2) shall be one hundred thirty thousand dollars; and that beginning January 31, 2012 and every two years thereafter, the combined parental income amount shall increase by the product of the average annual percentage changes in the consumer price index for all urban consumers (CPI-U) as published by the United States Department of Labor, Bureau of Labor Statistics, for the two year period rounded to the nearest one thousand dollars. These amendments take effect on January 31, 2010.
While I view the changes as necessary to keep up with economic changes, once the two year recalculation provision takes effect, it is going to make more difficult for family law lawyers to calculate the appropriate child support figures.
Tags: amendment, attorney, child support, child support guidelines, Child Support Standards Act, county, divorce, Domestic Relations Law, Family Court, Family Court Act, Family Law, lawyer, Livingston, Monroe, new york, New York Law, Ontario, Orleans, rochester, Supreme Court, Wayne
Posted in child support, child support enforcement, Child Support Standards Act, court orders, divorce, Domestic Relations Law, Family Court, Family Law, New York Law, procedure, Supreme Court | No Comments »
Sunday, July 12th, 2009
I frequently see child support petitions in Family Court seeking to modify child support provisions of either judgments of divorce, or stipulations or settlement agreements incorporated in the judgments of divorce. Sometimes these petitions argue that the child support provisions of the judgment of divorce, stipulation or settlement agreement are invalid as violating the Child Support Standards Act. Unfortunately, if brought in the Family Court, these petitions suffer from certain jurisdictional defects as demonstrated in Savini v. Burgaleta, 34 A.D. 686 (2nd Dept. 2006).
In Savini, in 1996, the father entered into a stipulation with the mother which provided that the father would “pay to the [mother] as and for child support 29 percent of his gross salary as defined under the Child Support Standards Act on a weekly basis calculated on actual income.” That stipulation was later incorporated but did not merge into a judgment of divorce.
In a 1997 handwritten agreement, which was neither incorporated nor merged into the divorce judgment, the mother allegedly agreed, inter alia, to accept the sum of $200 per week from the father as child support and not to commence any proceeding to recover the difference between that amount and the percentage of gross salary specified in the prior stipulation.
Subsequently, a child support proceeding was commenced in the Family Court by the mother, and the Family Court Support Magistrate, sua sponte, determined that “the prior Judgment of Divorce and the stipulations did not comply with the Child Support Standards Act” and therefore informed the parties that she would consider the issue of child support de novo. She directed the father, in the interim, to pay child support in the amount $446.15 per week effective February 11, 2005. After a hearing, the Support Magistrate determined, in relevant part, that the father should pay $559.78 per week in child support until June 29, 2005, and $482.57 thereafter, and made the order retroactive to the date of the petition. The Support Magistrate also awarded the mother an attorney’s fee in the sum of $11,990.
The father filed various objections to the Support Magistrate’s findings and order. He claimed that the Support Magistrate was without jurisdiction to hold a de novo hearing on the issue of child support as if the judgment of divorce had never existed. By order entered February 8, 2006, the Family Court, inter alia, denied the father’s objections and father appealed.
The Appellate Division agreed with the father that the Family Court was without subject matter jurisdiction, in effect, to vacate as illegal so much of the judgment of divorce as directed the father to pay child support and, thereafter, to determine the issue of child support de novo. What is particularly interesting in this case was its reasoning. The Appellate Division made this determination on constitutional grounds, stating that New York Constitution, article 6, §13 (c) provides that the Family Court is vested with limited jurisdiction “to determine, with the same powers possessed by the [S]upreme [C]ourt, the following matters when referred to the [F]amily [C]ourt from the [S]upreme [C]ourt: . . . in actions and proceedings for . . . divorce, . . . applications to fix temporary or permanent support . . . or applications to enforce judgments and orders of support”. Similarly, Family Court Act §466 provides, in relevant part, that, unless the Supreme Court directs otherwise, the Family Court may entertain an application to enforce an order or decree of the Supreme Court granting support, or an application to modify such order or decree “on the ground that there has been a subsequent change of circumstances and that modification is required.” The Supreme Court’s judgment of divorce provided, in relevant part, that the Supreme Court “retain[ed] jurisdiction of the matter concurrently with the Family Court for the purpose of specifically enforcing such of the provisions of the stipulation of child support as are capable of specific enforcement, to the extent permitted by law”.
The Court held that “nowhere in the Constitution, in the Family Court Act, or in the judgment of divorce itself, is the Family Court empowered, in effect, to invalidate a stipulation incorporated into the judgment of divorce entered by the Supreme Court. Significantly, the purpose of the mother’s petition was to enforce the terms of the stipulation of October 29, 1996 – not to have it declared illegal. Had either party questioned the legality of the stipulation, the issue should have been determined by the Supreme Court, which had issued the judgment in which the stipulation was incorporated. Accordingly, the Family Court was without jurisdiction to invalidate the stipulation and determine the child support issue de novo.”
What makes this situation different from typical modification of child support, which I previously discussed, here and here, is that fact that the provisions of the judgment apparently violated the Child Support Standards Act. In those situations, the Supreme Court has the jurisdiction to vacate any child support provisions of the judgment and recalculate child support de novo, going back to the original date of the judgment or the parties’ agreement. The Family Court does not have the jurisdiction to do so. Accordingly, this is an important procedural point that should be familiar to most divorce and family law lawyers handling child support issues. If the provisions of the judgment of divorce dealing with child support violate the Child Support Standards Act, the proper venue to address such issues lies in the court that issued the judgment of divorce.
Tags: attorney, child support, Child Support Standards Act, county, divorce, Domestic Relations Law, Family Court, Family Court Act, Family Law, jurisdiction, lawyer, Livingston, Monroe, new york, New York family law, Ontario, Orleans, rochester, Supreme Court, Wayne
Posted in child support, Child Support Standards Act, court orders, divorce, Domestic Relations Law, Family Court, Family Law, jurisdiction, modification, New York Law, Settlement Agreements, Stipulations, Supreme Court, Uncategorized | No Comments »
Monday, May 25th, 2009
As the end of the school year approaches, parents usually begin to look at various activities their children may participate in during the summer. One such popular option is a summer camp, which may be a day camp or a sleep-away camp. I am often asked who is obligated to pay for it.
I have previously written that under New York’s Child Support Standards Act, the parent paying child support is typically obligated to pay a portion of child care and other expenses. In Micciche v. Micciche, 2009 NY Slip Op 03702 (2nd Dept. 2009), the Appellate Division affirmed the principle that the cost of the summer camp is considered to be a part of the child care expense, and as such, both parties are required to contribute their pro-rata share in accordance with their income.
If there are no contrary provisions in the parties’ separation agreement or judgment of divorce, and one of the parents refuses to contribute his or her share of summer camp, I recommend that the other party discuss this issue with an experienced family law lawyer. Sometimes, it only takes a letter from an attorney to resolve such disputes.
Tags: attorney, child care, child support guidelines, Child Support Standards Act, county, divorce, Domestic Relations Law, expenses, Family Court, Family Court Act, Family Law, lawyer, Livingston, Monroe, Ontario, Orleans, rochester, summer camp, Supreme Court, Wayne
Posted in child support, child support enforcement, Child Support Standards Act, Domestic Relations Law, Family Court, Family Law, New York Law, Supreme Court | No Comments »
Monday, May 25th, 2009
Under New York law, child support consists of two elements: “basic” child support and the “add-ons.” Pursuant to Domestic Relations Law §240, New York requires that basic child support be calculated in two parts: (a) the support based on the total combined income of both parents up to $80,000; and (b) the support based on the total combined income of both parents over $80,000. For both parents’ combined adjusted gross income over $80,000, the court has the discretion to apply the same statutory guidelines, and for all practical purposes will do so. See Cassano v. Cassano, 85 N.Y.2d 649 (1995). The result will be the total combined basic child support attributable to both parents for the combined income in excess of $80,000. From the combined basic child support as calculated under the statute, a pro-rata share of each parent’s income is calculated. Each parent’s pro-rata share is a ratio equal to that parent’s adjusted gross income divided by the combined adjusted gross income for both parents. That pro-rata share is used to calculate each parent’s share of child support add-ons.
The parent paying child support is also obligated to pay for his/her pro-rata share of the following add-ons.
Day Care
Domestic Relations Law §240 (1-b)(c)(4) and Domestic Relations Law §240 (1-b)(c)(6) provide that when a custodial parent is working, seeking work, or is in school or training which will lead to employment, reasonable day care expenses will be allocated in a ratio equal to the each parent’s income to the combined income. Reasonable day care expenses vary and each situation should be discussed with an experienced family law lawyer to determine each party’s rights and responsibilities.
Health Care Expenses
Domestic Relations Law §240 (1)(d) provides that the cost of health care insurance shall be allocated in the same proportion as each parent’s income is to the combined parental income. Domestic Relations Law §240 (1-b)(c)(5) provides that reasonable health care expenses not covered by insurance are allocated in the same proportion as each parent’s income is to the combined parental income. Obviously, the parties can opt-out of the CSSA’s provisions with respect to the add-ons. Any provisions with respect to the cost of health insurance are enforceable just like child support provisions.
In Rochester and Monroe County, as well as in surrounding counties, the Supreme Court and Family Court usually require the non-custodial parent to carry health care insurance for the children. However, similarly to child care, there may be situations where it is more beneficial financially for the custodial parent to pay for the cost of health insurance for the children and for the non-custodial parent to contribute his or her share. The parties should be mindful of the cost of health care coverage and should discuss these issues with a family law attorney before entering into a separation agreement or agreeing to a judgment of divorce.
Educational and Extracurricular Expenses
In addition, the parents may be obligated to pay for the cost of extracurricular expenses and educational expenses, such as a private school or college. I have previously discussed issues related to the college costs, and will address issues related to paying for a private school at a later date.
Tags: attorney, child support add-on, Child Support Standards Act, cost, day care, divorce, Domestic Relations Law, Family Court, Family Law, health care insurance, lawyer, Livingston, Monroe, new york, New York Law, Ontario, Orleans, rochester, Supreme Court, unreimbursed medical expenses, Wayne
Posted in child support, child support enforcement, Child Support Standards Act, Domestic Relations Law, Family Court, Family Law, New York Law | No Comments »
Sunday, April 26th, 2009
I have previously written that a child support obligation can be suspended or terminated in situations where the court makes a finding that the child has deliberately severed his/her relationship with a parent, thereby abandoning that parent. However, in order for a court to make a finding of abandonment, the child must be of employable age.
Even if the child is not of employable age, the non-custodial parent’s child support obligation can be suspended or terminated, if the breakdown in the parent-child relationship came as a result of the actions of the custodial parent.
In Ledgin v. Ledgin, 36 A.D.3d 669 (2nd Dept. 2007), the Appellate Division held that interference with visitation rights can be the basis for the cancellation of arrears of maintenance and the prospective suspension of both maintenance and child support. However, such relief is warranted only where the custodial parent’s actions rise to the level of “deliberate frustration” or “active interference” with the noncustodial parent’s visitation rights.
In Frances W. v Steven M., 15 Misc.3d 839 (Fam. Ct. Queens Co. 2007), the court held that petitioner was not entitled to child support where she intentionally aided her sister in brainwashing the child, who is almost 20 years old, into falsely believing that the father had sexually abused her when she was an infant, and otherwise poisoned the child’s relationship with respondent from the time she was four years old. The court stated that since petitioner was an active participant in destroying her niece’s relationship with the father, “she was precluded from obtaining child support from respondent as a matter of fundamental fairness.”
In S.M.B. v D.R.B, 17 Misc.3d 1132(A) (Fam. Ct. Onondaga Co. 2007), petitioner father sought vacatur of order of support contained in parties’ divorce judgment, which incorporated their opt-out agreement. Father began his action after the mother engaged in pattern of active interference and deliberate frustration of child’s relationship with father. Mother was very angry that father paid no more child support than what’s been ordered by court. Mother has withheld father’s access to child since she moved to Florida and remarried. The court found that mother’s acts of alienation were not isolated incidents but a continuing pattern. The court further found that the child now shows no interest in having relationship with father because of mother’s unfortunate endeavors. Father’s support obligation vacated since father met his burden of establishing that mother unjustifiably frustrated his right to reasonable access.
If the child is not of employable age, and the custodial parent did not interfere with the relationship between the non-custodial parent and the child, the non-custodial parent’s obligation to pay child support will not be terminated by the court. Foster v. Daigle, 25 A.D.3d 1002 (3rd Dept. 2006).
Since most of these cases are tried on the issue of parental interference, it is important that each such case, before it is brought, is carefully screened by an experienced family law lawyer. Because parental interference cases require a significant level of proof, it is important that a petitioner is represented by an attorney familiar with such cases.
Tags: attorney, change in circumstances, child support, child support guidelines, Child Support Standards Act, county, divorce, Domestic Relations Law, Family Court, Family Court Act, Family Law, interference, lawyer, modification, Monroe, new york, New York family law, New York Law, Ontario, parental interference, rochester, Supreme Court, suspension, termination, visitation, Wayne
Posted in child support, child support enforcement, Child Support Standards Act, divorce, Domestic Relations Law, Failure to Pay Child Support, Family Court, Family Law, modification, New York Law, visitation | No Comments »
Monday, April 6th, 2009
I have mentioned last week that I have been seeing a significant increase in Family Court and Supreme Court filings seeking downward modification of child support. Most of these filings were brought on by a non-custodial parent after a loss of employment. In today’s economy, a loss of employment is not uncommon, so the courts are dealing with a significant rise in downward modification petitions.
There are two different situations that may arise when a non-custodial parent seeks downward modification of child support. First, if the child support was established by a stipulation or an agreement, that parent must establish that the loss of employment represents an unreasonable and unanticipated change in circumstances since the time of the stipulation to justify a modification, and that the alleged changes in that party’s financial position was not of his/her own making. See Connolly v. Connolly, 39 AD3d 643 (2nd Dept. 2007); Terjesen v. Terjesen, 29 A.D.3d 705 (2nd Dept. 2007). Additionally the party who lost employment will also have to establish that he/she used his/her best efforts to obtain employment commensurate with his/her qualifications and experience. Cox v. Cox, 20 A.D.3d 527 (2nd Dept. 2005). Further, allegations of a reduction in actual income are insufficient to support an application for a downward modification, as a matter of law, where contractual support obligations are based on a payor’s ability to earn rather than on his or her actual income at the time of the execution of such stipulation or agreement. Ellenbogen v. Ellenbogen, 6 A.D.3d 1026 (3rd Dept. 2004).
If the child support order was set by the court after a hearing, the parent seeking the modification of a child support obligation has the burden of establishing that there has been a substantial and unforeseen change in circumstances warranting a change in the support obligation. See Ketchum v. Crawford, 1 A.D.3d 359 (2nd Dept. 2003); Cadwell v. Cadwell, 294 AD2d 434 (2nd Dept. 2002). This standard is much easier to meet than the one applicable to the situations where child support was set by a stipulation or an agreement.
Depending on the circumstances, a downward modification case will fall in one of the two situations discussed above. Before commencing any proceeding, discuss your situation with an experienced New York family law lawyer to make sure that the proceedings are properly commenced and that you can meet the applicable legal standard.
Tags: agreement, attorney, child support, Child Support Standards Act, downward, Family Court, Family Law, judgment, lawyer, modification, new york, order, stipulation, Supreme Court
Posted in child support, child support enforcement, Child Support Standards Act, Domestic Relations Law, Failure to Pay Child Support, Family Court, Family Law, imputed income, modification, New York Law, procedure, Settlement Agreements, Stipulations, Supreme Court | No Comments »
Sunday, March 29th, 2009
I read New York Times article today that closely parallels my experience over the past few months. As the economy continues to deteriorate and jobs are lost through no fault of the party paying child support, the Family Court has seen a significant increase in petitions seeling downward modification of child support. While the article discusses how the cases are handled in New York City, as opposed to Rochester and nearby counties where I practice, I see a lot of similar issues in our local Family Courts.
I have previously discussed issues related to the contents of a Family Court petition seeking a modification of child support obligation. I should note that downward modification of child support due to a loss of employment is never guaranteed, and anyone seeking downward modification should use assistance of an experienced child support lawyer. I am planning to write a more detailed post on downward modification of child support in the near future.
Tags: attorney, child support, downward, Family Court, Family Court Act, Family Law, lawyer, loss of employment, modification, new york, reduction, rochester
Posted in child support, child support enforcement, Child Support Standards Act, court orders, Domestic Relations Law, Failure to Pay Child Support, Family Court, Family Law, imputed income, modification, New York Law, procedure, Supreme Court | No Comments »
Monday, March 16th, 2009
In general, the Child Support Standards Act includes all of the parties’ income for child support calculations, subject to appropriate child support limits and deductions. What happens in the situation when a party is receiving a tax refund for teh taxes paid during the previous year? In Shelby T. v. Michael L., 2009 NY Slip Op 29075 (Fam. Ct. Clinton Co. 2009), Judge Lawliss overturned the support magistrate’s decision which included the tax refund as income in the child support calculation. The court held that since the party obligated to pay child support receives a tax refund on the taxes paid in 2008, in 2009, if the court were to include the tax refund in the child support calculation, then the money earned, and taxed, in 2008, would count as income for child support purposes once again in 2009. Clearly, that was not the result contemplated by the Child Support Standards Act.
If engaged in child support litigation, a lawyer must make sure that his client’s income is counted only once and that the client receives all applicable deductions and variances.
Tags: alex korotkin, attorney, child support, Child Support Standards Act, divorce, Domestic Relations Law, Family Court, Family Law, lawyer, new york, rochester, Supreme Court, taxes
Posted in child support, child support enforcement, Child Support Standards Act, court orders, divorce, Domestic Relations Law, Family Court, Family Law, New York Law, procedure, Supreme Court, taxes | No Comments »
Monday, March 9th, 2009
Periodically, I am asked about situations where an overpayment of child support has taken place. Most of the time in those situations, I, as a lawyer, have to deliver to the client the unpleasant news that the amount overpaid cannot be recovered. This is true whether the child support was being paid pusuant to a judgment of divorce, separation agreement, or an order of Family Court. With respect to child support, there is a strong public policy against restitution or recoupment of any overpayment. See Katz v. Katz, 55 A.D.3d 680 (2nd Dept. 2008). The strong public policy considerations as decided by the New York courts, prevent recoupment or refund of child support paid. However, a parent may be entitled to a credit, enabling him or her to re-coup the overpayment of the child support payments against his/her share of the statutory add-on expenses – the portion of child support intended to cover child care and a child’s educational and special needs. See Coull v. Rottman, 35 AD3d 198 (1st Dept. 2007).
There are also certain limited circumstances in which a refund of child support may take place. For example, a refund may be directed when there was a mathematical error in the calculation of the amount of support (Colicci v. Ruhm, 20 AD3d 891 (4th Dept. 2005); when the support amount in the final order of support is less than in the temporary award (Maksimyadis v. Maksimyadis, 275 AD2d 459 (1st Dept. 2000)); or when it is shown that the subject child is not the biological child of the payor and there is no finding of estoppel (Thomas v. Commissioner of Social Services, 287 AD2d 642 (2nd Dept. 2001). There may be another category of cases where a refund of child support may be ordered. In Spencer v. Spencer, previously discussed on this blog, the Court of Appeals hinted that the recoupment may be available where it is ultimately determined that New York court lacked jurisdiction to order payment of child support.
If you are in a situation where you believe that child support was or is being overpaid, speak with an experienced family law attorney and find out what your options are and what can done in your particular case.
Tags: attorney, child support, credit, cseu, divorce, domestic relation law, Family Court, Family Law, lawyer, new york, overpayment, recoupment, rochester
Posted in child support, child support enforcement, Child Support Standards Act, court orders, divorce, Domestic Relations Law, Failure to Pay Child Support, Family Court, Family Law, modification, New York Law, procedure, Settlement Agreements, Stipulations, Supreme Court, UIFSA | No Comments »
