Archive for the ‘court orders’ Category

Credit for Payments Made to Satisfy the Other Spouse’s Legal Obligations

Saturday, October 25th, 2014

It is common for parties to make payments on their debts while their divorce action is pending.  Generally, each party is responsible for their own debts incurred after commencement of the divorce action, and, most of the time, the parties are jointly liable on any marital debt that preceded commencement of the divorce action. However, there are situations where one party is forced to make payment for the debts owed by the other party. Thus, it is important to know if one spouse pays for the other spouse’s legal obligations, does that spouse receive a credit for those payments?

In McKay v. Groesbeck, 117 AD3d 810 (N.Y.A.D. 2 Dept. 2014), the Appellate Division pointed out that a party’s maintenance and child support obligations are retroactive to the earlier of the date of filing or the date of application for them. Further, any retroactive amount due has to be paid, as the court directs, taking into account any amount of temporary maintenance or child support which has been paid as provided by DRL §236[B][6][a] and DRL § 236[B][7][a].

Generally, voluntary payments made by a parent for the benefit of his or her children may not be credited against amounts due under the court order or a judgment of divorce.  Only payments made pursuant to the judgment or order can be credited. Also, a party is not entitled to a credit for payments made to satisfy that party’s own legal obligations that were not made pursuant to a pendente lite order of support.

In McKay, there was a pendente lite order for temporary child support of $1,000 per month issued in 2006, but no payments were made pursuant to that order. However, a party is entitled to a credit for payments made to satisfy the other spouse’s legal obligations. The court held that the defendant should have received a credit towards arrears for any payments he made toward the plaintiff’s car payments and insurance, and for one half of the payments he made toward the mortgage and carrying charges on the marital home, as those payments were made to satisfy the plaintiff’s legal obligations.

Thus, the party paying legal obligations will receive a credit for those payments. This situation is likely to occur where the party receiving child support and/or spousal maintenance does not have sufficient financial resources to satisfy all of his or her debts. If the court grants this credit, both parties may benefit.

Tracing Method of Dividing Defined Contribution Retirement Assets

Sunday, September 28th, 2014

I have previously written about division of marital retirement assets which is traditionally done by computing a time based coverture fraction pursuant to the New York Court of Appeals’ decision in Majauskas v. Majauskas, 61 N.Y.2d 481 (1984). Majauskas was the seminal New York case that decided that the portion of the spouse’s pension or a retirement plan such as 401k, earned during the marriage, is marital property subject to equitable distribution. To the extent that a pension was earned or 401k contributions were made during the marriage, they are, for purposes of New York law, are considered to be marital property. The Majauskas decision sets forth the formula that normally is to be followed in dividing retirement assets and consists of a fraction computed on the basis of duration of the marriage and duration of the party’s employment.

While Majauskas has been the prevailing law for the last 30 years, a recent decision suggests that with regard to defined contribution retirement plans such as 401k or 403b plans, or their equivalents, the trial court has discretion to utilize a tracing method of equitable distribution. According to Jennings v. Brown, 43 Misc.3d 1229(A) (Sup. Ct. Seneca Co. 2014), “a small minority of cases have started to hold that use of a time-based fraction to determine the marital share of a defined contribution plan is permitted”. Tracing would allow the court to treat appreciation on any separate property portion of such retirement assets as separate property, thereby reducing the non-titled party’s interest in the asset. The court observed that utilization of time coverture fraction methodology utilized by the Court of Appeals in Majauskas may result in overvaluation of non-vested party’s interest and tracing method would remedy that problem.

In Jennings, the plaintiff argued that the tracing method should be utilized to establish defendant’s interest in plaintiff’s 401k plan. However, while accepting tracing methodology as valid, the court held that it was constrained by the terms of the parties’ judgment of divorce which referenced Majauskas method of dividing retirement assets.

While Jennings is a trial level decision, and I question at least one of the cases it relies on, it suggests that with regard to defined contribution retirement funds, tracing method could be accepted by the trial court. Under appropriate circumstances, tracing method may greatly benefit the titled spouse. It also suggests that when the case is tried, the party seeking to utilize tracing method will need to present expert testimony on this issue. In Jennings, an affidavit of a CPA was presented to the court.  Since Jennings is a trial level decision, it remains to be seen whether the appellate courts will agree with its reasoning.

Standard of Living, Diminished Income, Spousal Maintenance and Child Support

Saturday, July 5th, 2014

The courts in New York have had some difficulty dealing with situations were a claim of recently diminished income has been presented to the court in response to a temporary spousal support application. In most situations, the courts would either impute income or deny downward modification. The courts have been concerned with the parties’ standard of living for the non-monied spouse and the children despite  the claims of the income-producing spouse of diminished resources and/or income. One trial decision, S.A. v. L.A., 2 Misc.3d 7441 (Sup. Ct. Westchester Co.), illustrates the situation where the present financial situation – the husband earning a lot less income than existed throughout the marriage, has led the court consider present circumstances and to caution the non-monied spouse that she would have to deal with a new economic reality.

In considering interim spousal support, the court had to determine if it would apply the husband’s 2012 income of $819,049 or his far lesser annualized 2013 income imputed at $240,000. The husband was 56 years old and employed in the financial services industry. The wife was 64 years old stay-at-home wife and mother, who has not had any significant for 23 years of the marriage. The husband claimed that he was terminated from his old job through no fault of his own and he was forced to find new employment at a much lower rate of pay. The wife argued that he had voluntarily left his former employment.

The court had to address the principles of utilizing the current income as opposed to the income on the last tax return on a presumptive temporary maintenance calculation. The court determined that according to the language of the Domestic Relations Law §240 (1-b) (b) (5), the income rules applicable in child support proceedings may be used to determine an application for temporary spousal maintenance, as is available for interim child support.

The second part of the court’s analysis, and of great significance, was the court’s view of the parties’ present diminished financial situation from their historic standard of living even as measured by the immediately preceding year. The reduction in the family’s income from the husband’s 2012 adjusted gross income of $819,049.00 to the annualized 2013 income of $240,000.00, was accepted by the court. As result, instead of presumptive temporary support of $17,000.00 per month as requested by the wife, the court awarded $5,737.00 per month. The court further found that with the requested amount of $17,000.00 exceeded the wife’s legitimate monthly expenses, rendering the presumptive award unjust and inappropriate. The court ruled that the issue of whether the husband had been discharged or voluntarily separated from his old employment was reserved for trial.

In its decisions, the court stated that:

The court recognizes that the spousal support provisions in this decision and order will greatly affect the parties’ respective post-separation standards of living. They need to consider the financial predicament they are in, and how to deal with the future. They are now suffering the consequences of their prior high standard of living. It is beyond dispute that two cannot live as cheaply as one, and that “hardship” at any economic level follows drastic losses of income. It is time for the parties to recognize the financial reality they may well face in the future, given their ages, work experience and future prospects for employment. The court urges that the parties’ focus should be on financial planning with asset and debt liquidation. The continuance of this costly litigation will not heal their wounds, both economic and emotional, already suffered, but rather will exacerbate them.

The decision in S.A. v L.A. illustrates that during the difficult economic times, the parties may have to temper their expectations. If a monied spouse can not earn past levels of income through no fault of his or her own, the non-monied spouse is likely to have to share the hardship as well.

Update on Duration of Maintenance

Saturday, October 26th, 2013

When New York Legislature passed the “no-fault” divorce statute in 2010, it created a formula for calculating temporary spousal maintenance under DRL §236[B]5-a. However, it did not set forth a formula or specific rules for establishing spousal maintenance post-divorce in terms of both amount and duration.

Thus, family law attorneys have to rely on court decisions as a basis for estimating likely spousal maintenance awards. In Monroe County, in a typical maintenance case, it is likely that a spouse who is entitled to receive maintenance is likely to receive spousal maintenance with length of one third duration of the marriage.  This rule of thumb has been utilized by a number trial court judges and lawyers. However, not every trial judge subscribes to it, and each judge’s views of maintenance are likely to impact such awards.

In a recent case, Zufall v. Zufall, 2013 NY Slip Op 06142 (4th Dept. 2013),  The Appellate Division, Fourth Department, has confirmed this. In Zufall, the parties were married for 21 years and have five children, one of whom was emancipated. During the marriage, plaintiff was primarily a homemaker, raising the parties’ children while defendant worked as a correction officer. Shortly before divorce action was commenced, defendant retired at the age of 50 after 25 years of service. Plaintiff has been determined by the Social Security Administration to be 50% disabled, and she receives partial Social Security disability benefits of $622 per month plus workers’ compensation benefits of $400 per month. She also works 20 hours per week as a bartender, earning $5 per hour plus tips.

The court stated that after considering the statutory factors enumerated in Domestic Relations Law § 236 (B) (6) (a) — particularly, the length of the marriage; the income and property of the parties, including the marital property distributed by the court; and the present and future earning capacity of the parties,  ”[w]ith respect to the duration of maintenance, however, we agree with defendant that the court’s award is excessive insofar as the court ordered defendant to pay maintenance until plaintiff turns 62, i.e., for approximately 18 years. We conclude that a term of seven years from the date of commencement of the action “should afford the plaintiff a sufficient opportunity to become self-supporting”.”

Given the circumstances, the trial level award of 18 years of maintenance was probably too long.  As a result, it appears that the Appellate Division, Fourth Department, has adopted a bright line rule of awarding spousal maintenance for one third of the duration of the marriage.

It will be interesting to see if this standard will survive any changes to the Domestic Relations Law that may come as a result of the Law Revision Commission’s report issued in May.

Shared Custody and Child Support – Number of Overnights Controls

Monday, September 2nd, 2013

I have previously written about the case of Baraby v. Baraby, 250 A.D.2d 201, 681 N.Y.S.2d 826 (3d Dept, 1998), where the Appellate Division held that in an equally shared custody case the parent who has the greater income should be considered the noncustodial parent for purposes of child support. This has been the rule in shared custody cases for the last 15 years.

However, in a recent decision, Rubin v. Salla, 107 A.D.3d 60 (N.Y.A.D. 1 Dept. 2013), the Appellate Division held that based on the plain language of the Child Support Standards Act, that a custodial parent cannot be directed to pay child support to a noncustodial parent, and that the “custodial parent”, in an equally shared custody case, is “the parent who has the child the majority of the time, which is measured by the number of overnight time that parent has with the child.”

In Rubin, the parties were the unmarried parents of a 9–year–old son. The mother and father always lived separately. After trial, the court awarded primary physical custody to the father during the school year, with the mother having parenting time on alternate weekends (from Friday after school to Monday morning) and every Thursday overnight. During the summer, the schedule was reversed and the child would live primarily with the mother, but would spend Thursday overnights and alternate weekends with the father. The mother would also have the child each winter vacation, and the other vacations were evenly divided. Additionally, each parent had two weeks with the child during the summer. With respect to legal custody, the court awarded the father decision-making authority, after consultation with the mother, over educational and medical issues. The mother was given authority, after consultation with the father, over decisions on summer and extracurricular activities, and religion.

Following the custody decision, the father sought to dismiss the mother’s cause of action for child support. He argued that, by the terms of the custody order, he was the custodial parent because the child would spend the majority of the year with him. He argued that, as a matter of law, the court could not order him to pay child support to the mother, the noncustodial parent. The father established that during the period from July 2012 to June 2013 there were 206 overnights with the father and 159 with the mother. These custodial periods amounted to the child being with the father 56% of the time and with the mother 44% of the time.

The trial court denied the father’s motion for summary judgment, holding that an award of child support to the mother was not precluded because the parties had “parallel legal custody” of their son and both spent some time with the child, it was impossible to say, as a matter of law, that the father was the custodial parent for child support purposes. The court also focused on the disparity between the parents’ financial circumstances and concluded that, regardless of whether the father was the custodial parent, it had the discretion to award the mother child support because she needed funds to pay her monthly rent and to maintain the type of home she could not otherwise afford without the father’s assistance.

The Appellate Division reversed, holding that under the Child Support Standards Act, the father, as the custodial parent, cannot be directed to pay child support to the mother, the noncustodial parent. According to the decision, the CSSA provides for “a precisely articulated, three-step method for determining child support” awards in both Family Court and Supreme Court. Under the CSSA’s plain language, only the noncustodial parent can be directed to pay child support. Domestic Relations Law § 240(1–b)(f)(10) and FCA § 413(1)(f)(10) state that, after performing the requisite calculations, “the court shall order the non-custodial parent to pay his or her pro rata share of the basic child support obligation.”

After analyzing the applicable case law, the Appellate Division stated that only where the parents’ custodial time is truly equal, such that neither parent has physical custody of the child a majority of time, have courts deemed the parent with the higher income to be the noncustodial parent for child support purposes. Where parents have unequal residential time with a child, the party with the greater amount of time is the custodial parent for CSSA purposes. The great disparity in overnights here—56% to 44%—forced the court to make a finding that the mother was the non-residential parent.

Unlike the trial court which counted the waking hours each parent spent with the child, the Appellate Division decision held that the number of overnights, not the number of waking hours, is the most practical and workable approach. The court stated that:

Allowing a parent to receive child support based on the number of daytime hours spent with the child bears no logical relation to the purpose behind child support awards, i.e., to assist a custodial parent in providing the child with shelter, food and clothing (see e.g. Higgins v. Higgins, 50 A.D.3d 852 (2d Dept. 2008) [food, clothing and shelter costs are inherent to the basic child support obligation]). Furthermore, because a child’s activities are subject to constant change, the number of hours spent with each parent becomes a moving target. Outside of school hours, a child may participate in after-school activities, spend time with a child care giver, be enrolled in tutoring, or attend summer camp. During those times, the child may not be with either parent. The child’s activities may vary day to day and will change as the child ages, unnecessarily creating the need to recalculate the parties’ parenting time and possibly modify the custodial parent designation. Moreover, the use of this type of counting approach could also lead parents to keep their children out of camp or other activities simply to manipulate their time spent with the child so as to ensure that they are designated the “custodial parent”.

Thus, Rubin makes it clear that even in shared custody situations, the courts will seek to determine who is the residential parent for child support purposes.  In some respects, counting overnights makes it easier for the courts, however, under certain circumstances, counting overnights only does not represent a true picture of parental involvement.  At the same time, this decision introduces much needed clarity.

Future Changes to Spousal Maintenance

Sunday, June 9th, 2013

When New York Legislature passed the “no-fault” divorce statute in 2010, it created a formula for calculating temporary spousal maintenance under DRL §236[B]5-a. However, it did not set forth a formula or specific rules for establishing spousal maintenance post-divorce. At the same time, the Legislature directed that a law revision commission be set up to review New York’s spousal maintenance law and make recommendations to the legislature with regard to potential changes.

On May 15, 2013, the Commission issued its “Final Report on Maintenance Awards in Divorce Proceedings”.  The Commission recommended that that a mathematical formula be used to calculate a presumptive award of post-divorce income from one party to the other based on the parties’ combined adjusted gross income of $136,000. It stated that in awarding post-divorce income, the court can adjust the presumptive award based on a set of statutory factors if it finds that the presumptive award is unjust or inappropriate based on the circumstances of the parties.  If the parties’ combined adjusted gross income exceeds $136,000, the Commission recommended that the mathematical formula apply to that portion of the parties’ combined income which is at or less than $136,000, and that the court be guided by a set of factors in considering whether an additional award is justified based on any excess income.

The Commission also recommended that the duration of any post-divorce income award be based on consideration of the length of the marriage, the length of time necessary for the party seeking post-divorce income to acquire sufficient education or training to enable that party to find appropriate employment, the normal retirement age of each party as defined by the Internal Revenue Code and the availability of retirement benefits, and any barriers facing the party seeking post-divorce income with regard to obtaining appropriate employment, such as child care responsibilities, health, or age. The court would have to state the basis for the duration of the award in its decision granting the award. Further, the duration of temporary maintenance awards would be limited so that maintenance awards do not exceed the length of the marriage.

One suggestion that was made by the Commission that would be a significant departure from the existing law is that the Commission recommended that one party’s increased earning capacity, no longer be considered as a marital asset in equitable distribution under section 326B(5), and that any spousal contribution to the career or career potential of the other party be addressed in an award of post-divorce income. The concept of an “increased earning capacity”, also known as “enhanced earnings“, has created much prior litigation because of the asset’s intangible nature, the need for valuation, the speculative nature of its “value” as well as the costs associated with valuations, and problems of double counting increased earnings in awards of post-divorce income and child support.

The Commission additionally recommended that the provisions of a revised temporary maintenance statute in the Domestic Relations Law be mirrored in section 412 of the Family Court Act governing spousal support awards.

If the Legislature adopts the report, it is likely to represent some of the most significant changes to New York’s Family law since New York adopted its equitable distribution and child support statutes. It remains to be seen if the Legislature will accept some or all of the Commission’s recommendations.

Changes in Temporary Maintenance and Child Support Statutes

Sunday, March 18th, 2012

Because of the language in the statute providing for cost of living adjustments, temporary maintenance guidelines income cap was raised from $500,000 to $524,000. The “cap” on each spouses annual income, to be utilized in calculating temporary maintenance orders, has increased from $500,000 to $524,000 effective January 31, 2012 in accordance with Domestic Relations Law § 236 [B][5-a][b][5]. The statute provided that:

Beginning January 31, 2010 and every two years thereafter, the income cap increases 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. The office of court administration is required to determine and publish the income cap. See Domestic Relations Law § 236[B], [5-a][b][5].

Similarly, the child support cap was modified as well. The “combined parental income amount” utilized in calculating child support orders has increased from $130,000 to $136,000 effective January 31, 2012. The amount of the “combined parental income” is established by Domestic Relations Law § 240 (1-b) (2) as the amount set forth in Social Services Law § 111-I (2) (b). Domestic Relations Law § 240 (1-b) (2) provides that the amount established shall be multiplied by the appropriate child support percentage and such amount shall be prorated in the same proportion as each parent’s income is to the combined parental income. Social Services Law § 111-I (2)(b) provides that the $130,000 cap is increased automatically on January 31, 2012 and on January 31 every two years thereafter 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.

While the change in the temporary maintenance cap is not likely to be applicable in vast majority of divorce cases, the change in the basis economic support amount applicable to child support cases is likely to be significant in a large number of cases in Family Court and Supreme Court.

Violation Petition Must Be Sufficiently Specific to Provide Notice of Alleged Violation

Saturday, February 4th, 2012

In Miller v Miller, 90 A.D.3d 1185 (N.Y.A.D. 3 Dept.) the parties were the parents of two children, born in 2004 and 2005. A custody order entered in March 2008 granted sole legal custody to mother with visitation to father as agreed between the parties. The order, among other provisions, required that the children be properly supervised at all times, and that neither parent smoke or permit a third party to smoke in a vehicle in which the children are passengers.

In June 2010, the father filed a violation petition alleging that the mother was in contempt of this order by failing to properly supervise and discipline the children, since she had permitted the older child to be violent towards others and to smoke. Finding that the petition lacked sufficient specificity to provide the mother with proper notice and failed to outline how the father’s rights had been prejudiced, Family Court dismissed the petition without a hearing, but ordered a child neglect investigation by the local Department of Social Services.

The Appellate Division held that the petition was subject to the requirements of CPLR §3013, and it was required to “be sufficiently particular” as to provide notice to the court and opposing party of the occurrences to be proved and the material elements of each cause of action. Since petition only included generalized allegations of the petition, even liberally construed, it had failed to provide the mother with notice of a particular event or violation such that she could prepare a defense.

Further, according to the Appellate Division, the father failed to assert how the mother’s alleged failings defeated, impaired, impeded or prejudiced his rights, as required to warrant a civil contempt finding. While Family Court ordered an investigation to determine whether a neglect or abuse proceeding should be initiated, the investigation did not fix the defects in the father’s petition. Accordingly, the appellate court concluded that the trial court properly dismissed the petition without a hearing.

The rule for sufficiency of petitions is simple: a party must alleging facts with sufficient particularity so that notice of events and elements of legal issues is given to the opposing party and the court. If petition is insufficient, it will be dismissed.  Alternatively, the court may give a party an opportunity to amend the petition.

Parent’s Obligation to Pay for College Is Not Limited To Cost of SUNY Education Unless Proven Otherwise

Sunday, November 13th, 2011

In Pamela T. v. Marc B., 2011 N.Y. Slip. Op. 21355 (N.Y.Sup.2011), the court had to decide whether the parent’s obligation to pay for college should be limited to the so-called “SUNY cap”. The Supreme Court concluded that parent’s argument that before a parent can be compelled to contribute towards the cost of a private college, there must be a showing that a child cannot receive an adequate education at a state college, has no basis in the law.

The parties were divorced on December 23, 2008 and have two sons, 18 and16 years old. Their judgment of divorce was silent as to the payment of the children’s college tuition and expenses.

In 2007, the older child was diagnosed with emotional and learning/anxiety disorders, which resulted in certain educational accommodations. Despite his disabilities, he graduated in 2011 from a selective public high school in Manhattan. He was accepted at Syracuse University, SUNY Binghamton and SUNY Buffalo, as well as other schools. The costs of college education varied from Syracuse at approximately $53,000 a year to attend, to SUNY Binghamton and SUNY Buffalo that cost about $18,000 a year. The child decided to attend Syracuse which he is now attending as a freshman.

The both parents are practicing attorneys in New York City. Plaintiff’s 2010 federal income tax return reported adjusted gross income of $109,896. Defendant’s 2010 federal income tax return reported adjusted gross income of $105,135. Plaintiff’s net worth statement showed she had assets of approximately $1,230,000. Defendant’s net worth statement showed he had assets of approximately $580,000. Both plaintiff and defendant went to private undergraduate colleges and law schools.

Defendant did not oppose an order directing him to contribute to his older child’s college education, but he requested that the court to apply the SUNY cap and limit his responsibility to a percentage of the costs of a state university education rather than to a percentage of a private college education. Defendant’s position was based on his claim that he was unable to meet the financial demands of paying for private college and on his belief that his son could receive as good an education at SUNY Binghamton as he could at Syracuse.

The court stated that Domestic Relations Law 240(1- b)(c)(7) gave the courts of this state the authority to “direct a parent to contribute to a child’s private college education, even in the absence of special circumstances or a voluntary agreement. The statute provides that when a court exercises its discretion to direct such a contribution from a parent, it is to do so “having regard for the circumstances of the case and the parties, the best interests of the child, and the requirements of justice.” The courts interpreted the provisions of DRL 240(1-b)(c)(7) by setting forth specific factors that are to be considered in determining whether to award college expenses. These factors include the educational background of the parents and their financial ability to provide the necessary funds, the child’s academic ability and endeavors, and the type of college that would be most suitable for the child.

The Court stated that DRL 240(1-b)(c)(7) does not provide for a SUNY cap. The SUNY cap appeared in a number of decisions rendered since the enactment of the statute. These cases have not provided an explanation as to when a SUNY cap might be properly applied over the objection of the parent who is seeking an award for college expenses.

The court found that Berliner v. Berliner, 33 A.D.3d 745, 749 (2d Dept. 2006) was instructive because in that case the Second Department stated that there “is no basis in this record” for imposing the SUNY cap implied that the burden falls on the proponent of the cap to demonstrate that it is warranted. The inference to be drawn is that there is no presumption that a parent’s obligation to pay for college is to be limited to the cost of a SUNY education unless proven otherwise; if anything, the presumption goes the other direction. It was also instructive because the decision’s reference to the “so-called SUNY cap” implied that even the Second Department views the SUNY cap as something less than an established doctrine.

The court rejected defendant’s argument that plaintiff be required to prove that Syracuse was a better school than SUNY Binghamton, in order for him to be required to pay Syracuse’s higher expenses. The decision noted that it is difficult to conceive of a workable procedure, let alone a methodology, for a court to make a finding that one college is “better” than another. The court found that there was sufficient showing to support the child’s choice of Syracuse, irrespective of whether it is ranked lower, higher or the same as SUNY Binghamton or any other SUNY school. If there are funds are available to finance the child’s education, the fact that Syracuse was a private school and cost more than a public school was not a reason to interfere with the child going to the school he chose and he wanted to attend.

The court further held that one of the factors to be considered when making a determination under DRL 240(1-b)(c)(7) is the parents educational background. Inasmuch as plaintiff attended Northwestern and defendant attended Columbia, the court could reasonably assume that there would exist an expectation in the family, and in the child himself, that he too could attend a private college.

Having found that defendant had to contribute to his son’s education at Syracuse University, the court had to consider the defendant’s ability to pay. It was defendant’s position that even though plaintiff may have the means to pay the high cost of their son attending Syracuse, he lacked the means to do so. Consequently, he argued that he should have to pay no more than $9,000 a year towards his son’s education, an amount that is roughly 50% of the present annual cost of a SUNY school.

The court rejected defendant’s contention as to his inability to pay a significant share of the child’s actual educational expenses being incurred at Syracuse. The court held that the parties’s incomes and assets would allow them to pay for their child’s education at Syracuse.

The court further held that there was no basis to impose the SUNY cap, to the extent that it should be imposed at all, where the party seeking to invoke the cap has the financial ability to contribute towards the actual amount of his or her child’s college expenses. Although defendant’s contribution should be less than plaintiff’s, based on the difference between their net assets, and in particular what each of them had available for eventual retirement, that contribution should not be subject to some artificial construct like the SUNY cap. On this basis, the court held that defendant shall be obligated to contribute 40% of the total cost of the older child attending Syracuse University, with those costs to include tuition, room and board, fees and books.

Thus, this decision confirms that if a parent is hoping to place a limit on future college costs, it is very important to include provisions in the parties’ separation agreement or settlement stipulation placing an upper limit on such costs.

Interference with Visitation May Result in Change in Custody

Sunday, September 4th, 2011

In Keefe v. Adams, 85 A.D.3d 1225 (3d Dept. 2011), the Appellate Division, Third Department, had to address issues related to interference with visitation which were raised by the father who brought a petition to modify existing  custodial and residential arrangement.  The parties had a custody and residential arrangement on the basis of May 2007 consent order which provided for joint custody, with mother having primary physical custody and father having visitation. In August 2009, father sought a modification of custody, alleging that mother moved out of county without his consent and is consistently late in exchanging child at drop-off location.

The court held that a significant change in circumstances occurred which reflected real need to modify parties’ stipulated custody order. The court found that mother admitted to moving with child to different county, 42 miles away from father, without informing him, and parties’ relationship deteriorated to point of inability to discuss important matters concerning their child. Further, mother also consistently arrived between 15 minutes to 2 hours late in dropping child off or picking child up. Mother interfered with father’s visitation rights by arriving late for dropping off and picking up child. The court also held that evidence showed as well that mother promoted her boyfriend as substitute for child’s father and that her relocation both required the child to change schools and hindered the father’s involvement in the child’s life. The father, on the other hand, manifests a markedly greater ability to control his behavior in front of the child, as well as a willingness to foster the relationship between the mother and child. The court noted that while custody with the father will unfortunately separate the child from his half brother, with whom he has a close relationship, the father testified that the half brother would be welcome in his home.

In view of the above circumstances, the court held that an award of sole custody to father with visitation to mother in child’s best interests. The court’s decision to modify existing custodial arrangement is not a common one. In most cases, courts are likely to fashion a less drastic remedy.