Downward Modification of Child Support

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.

Recession and Increase in Downward Modifications Petitions

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.

Overpayment of Child Support and Right of Recoupment

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.

Downward Modification of Maintenance

In these uncertain economic times, someone obligated to pay maintenance may lose a job, experience significant investment losses, or suffer other adverse financial events. Can something be done about maintenance under those circumstances? The answer, as I have often written, depends on the specific facts.

A party seeking the reduction of a maintenance obligation bears the burden of establishing a substantial change of circumstances. Klapper v. Klapper, 204 A.D.2d 518 (2d Dept. 1994). In Klapper, the Second Department held that, in determining whether there was a substantial change in circumstances sufficient to warrant downward modification, the change is to be measured by a comparison between the payor’s financial circumstances at the time of the motion for downward modification and at the time of divorce or, as the case may be, the time that the order of which modification is sought was made.” Id. at 519. The Appellate Division, Fourth Department utilized the same standard of review in Able v. Able, 245 A.D.2d 1026 (4th Dept. 1997).

In Simmons v. Simmons, 26 A.D.3d 883 (4th Dept. 2006), defendant lost his job and subsequently moved for a downward modification of his maintenance obligation. The Appellate Division held that since despite defendant’ diligent job search, he had little prospect of finding employment at a salary comparable to his salary at the time of the divorce, the downward modification was warranted.

The party seeking to modify the maintenance provisions of a judgment of divorce in which the terms of a stipulation of settlement have been incorporated but not merged, must demonstrate that the continued enforcement of the party’s maintenance obligations would create an “extreme hardship”. Beard v. Beard, 300 A.D.2d 268 (2d Dept. 2002) (the proper amount of support payable is determined not by a parent’s current economic situation, but by a parent’s assets and earning powers). See also, Domestic Relations Law § 236(B)(9)(b).

A reduction in the payor’s income will not result in decreased maintenance where it is the result of a voluntary action, such as self-imposed retirement. Fendsack v. Fendsack, 290 A.D.2d 682 (3d Dept. 2002); DiNovo v. Robinson, 250 A.D.2D 898 (3d Dept. 1998). In Dallin v. Dallin, 250 A.D.2d 847 (2d Dept. 1998), the Second Department held that Family Court properly rejected the father’s claims that his financial situation, prolonged unemployment, and illnesses warranted a drastic reduction of his maintenance and child support obligations. The father had failed to produce any competent evidence to support his claim that he used his best efforts to obtain employment commensurate with his qualifications and experience or that his medical conditions rendered him unemployable.

In Lenigan v. Lenigan, 146 Misc.2d 627 (Sup.Ct., Albany County 1990), the defendant sought to reduce his maintenance and child support obligations. The defendant claimed that, in the prior three months, his compensation as a stock broker had been reduced. It is well settled that the party seeking to obtain a reduction of support bears the burden of establishing a substantial change of circumstances. Id. A drastic change in income can constitute a substantial change of circumstances. Id. In Lenigan, the defendant was a stockbroker, and by the very nature of his business, his income would fluctuate throughout the year. The Supreme Court held that, adopting the defendant’s theory of allowing a modification based upon temporary fluctuations in income would lead to a ludicrous result. Although the defendant asserted a three-month lull in business, there was nothing to establish that sales would not pick up in the following months.

In conclusion, an experienced divorce lawyer faced with a significant change in client’s economic situation, must carefully construct an argument for the court that the change was not created by his/her client, that the change is significant, that it is likely to last for a some time, and that the client has exhausted all other alternatives.
In Watrous v. Watrous, 292 A.D.2d 691 (3d Dept. 2002), at age 55, the plaintiff voluntarily retired from State employment and, shortly thereafter, moved to terminate or, in the alternative, reduce his maintenance obligation. The plaintiff asserted as a substantial change in circumstances that he took early retirement due to his poor health and would be experiencing a significant reduction in income. A hearing was held and, at the close of plaintiff’s proof, Supreme Court granted defendant’s motion to dismiss, finding that plaintiff had failed to establish a sufficient change in circumstances. The Third Department affirmed on appeal, stating that a maintenance obligation established by a judgment of divorce will not be modified absent clear and convincing proof of a substantial change in circumstances. The record revealed that, at the time of the divorce, Supreme Court was aware of both the medical restrictions on plaintiff’s employment and the possibility that his poor health might cause him to retire early. Accordingly the circumstances existing at the time of the plaintiff’s application for downward modification were foreseeable, and anticipated at the time of the parties’ divorce. Furthermore, the record was devoid of evidence that the reduction in the plaintiff’s income would substantially diminish his standard of living or his ability to satisfy his maintenance obligation. The Third Department therefore concluded that the plaintiff failed to establish a substantial change in circumstances.

Paying for College – A Requirement Under the Child Support Standards Act?

Prior to the enactment of the Child Support Standards Act, contained in Family Court Act §413 and Domestic Relations Law §240, the courts had held that the provision of a college education to one’s minor children was not a necessary expense for which a parent could be obligated in the absence of a voluntary agreement or special circumstances. Haessly v. Haessly, 203 A.D.2d 700 (3d Dept. 1994). However, recent case law recognized that special circumstances, which involve the educational background of the parents, the child’s academic ability, and the parents’ financial ability to provide the necessary funds, continue to be relevant factors in applying the standard set forth by the Legislature in the Child Support Standards Act for determining whether an award for college expenses is appropriate.

It is clear that the Court has the power to order a parent to pay his child’s educational costs even though the parties’ settlement agreement is silent on that issue. Manocchio v. Manocchio, 16 A.D.3d 1126 (4th Dept. 2005); McDonald v. McDonald, 262 A.D.2d 1028 (4th Dept. 1999). As aptly noted in Mrowka v. Mrowka, 260 A.D.2d 613, 613 (2d Dept. 1999), “Although the parties’ stipulation of settlement was silent as to the costs of college, this does not necessarily mean that an agreement was reached pursuant to which college costs would not constitute a component of the parties’ obligation to pay child support.”

According to the Appellate Division, Fourth Department, Fruchter v. Fruchter, 288 A.D.2d 942, 943 (4th Dept. 2001), the Child Support Standards Act authorizes an award of educational expenses where warranted by the best interests of the children and as justice requires, upon a showing of “special circumstances”. Relevant factors include the educational background of the parents, the child’s scholastic ability, and the parents’ ability to provide the necessary funds. Id.

In Manocchio v. Manocchio, 16 A.D.3d 1126 (4th Dept. 2005), the Appellate Division, the Fourth Department, rejected the father’s contention that Family Court improperly denied his objection to an order requiring him to pay half of his daughter’s educational expenses. The Fourth Department held that the support magistrate properly determined that the petitioner-mother was unable to meet the child’s educational needs on the income and support that she was receiving, and that the respondent-father had the ability to pay support. Id.

Therefore, even if the parties have a separation agreement that is silent on the issue of paying for college, they may be directed to pay for their child’s college education by the court.

Recent Amendment to Domestic Relations Law §240

On January 15, 2009, another amendment to Domestic Relations Law §240 became effective. The amendment prohibits courts from signing custody orders before they check the following registries: the domestic violence registry, the Family Court “Universal Case Management System” (for child protective decisions and orders), and sex offender registry. The court is required to notify the attorneys, self-represented parties and attorneys for children of the results of the search. This notification can be made in writing or orally, on the record, especially with with respect to the sex offender registry, since the search of that registry will not generate a report that can be shared with the parties.

As a result of the amendment, the judgments of divorce, permanent custody orders and any temporary orders involving petitions for custody or visitation, must include the language stating that required databases were reviewed and what information , if any, from the databases was relied upon by the court in issuing the order.

The above is likely to place an additional burden on the courts, litigants and attorneys.

Child Support, Abandonment and Constructive Emancipation of a Child

I am asked occasionally whether a parent’s child support obligation can be terminated on the grounds that the child stopped all contact with the parent in order to avoid parental control. My usual response is that it can be done, but the parent must establish either abandonment or constructive emancipation, and faces a substantial burden of proof.
The Family Court Act §413 mandates that parents support their children until they reach the age of 21. The courts in New York have held that a child’s right to support and the parent’s right to custody and services are reciprocal, and that a parent may impose reasonable regulations. Generally, where a minor of employable age and in full possession of her faculties, voluntarily and without cause, abandons the parent’s home, against the will of the parent and for the purpose of avoiding parental control, the child forfeits his/her right to demand support. Roe v. Doe, 29 N.Y.2d 188 (1971); Matter of Ontario County Department of Social Services (Christopher L.) v. Gail K., 269 A.D.2d 847 (4th Dept. 2000), leave denied, 95 N.Y.2d 760 (2000).
While the duty to support is a continuing one, the child’s right to support and the parent’s right to custody and services are reciprocal. Roe v. Doe, 29 N.Y.2d 188 (1971). Thus, a parent, in return for maintenance and support, may establish and impose reasonable regulations for his/her child. In Roe v. Doe, supra, the Court of Appeals explained:

Accordingly, though the question is novel in this State, it has been held, in circumstances such as here, that where by no fault on the parent’s part, a child “voluntarily abandons the parent’s home for the purpose of seeking its fortune in the world or to avoid parental discipline and restraint [the child] forfeits the claim to support” . . . To hold otherwise would allow, at least in the case before us, a minor of employable age to deliberately flout the legitimate mandates of her father while requiring that the latter support her in her decision to place herself beyond his effective control.

The doctrine of constructive emancipation is applicable to the non-custodial parent where the child unreasonably refuses all contact and visitation. Matter of Commissioner of Social Services (Jones) v. Jones-Gamble, 227 A.D.2d 618 (2nd Dept. 1996). In that case, the court held that the evidence clearly established that the child wanted no relationship with her father. Despite the father’s prior support payments, there was essentially no parent-child relationship between them. The appellate court held that, to require the father to provide reimbursement for the support of a daughter who had renounced and abandoned him would have clearly resulted in an injustice under the facts of that case.
In the Fourth Department case, Perez v. Perez, 239 A.D.2d 868 (4th Dept. 1997), appeal dismissed, 91 N.Y.2d 956 (1998), the record established that the parties’ 18 year old daughter had refused to visit with the father or to have any relationship with him. That child was found to be a minor of employable age and in full possession of her faculties, who had voluntarily refused to have a relationship with plaintiff. The child thereby forfeited her right to support from her father. Accordingly, the Fourth Department rejected the mother’s contention that the lower court erred in modifying the parties’ divorce decree by suspending father’s obligation to pay child support for the parties’ child until further order of the court.
Children of employable age and in full possession of their faculties who voluntarily and without cause abandon their home, against the will of their parents and for the purpose of avoiding parental control, forfeit their right to demand support, even if they are not financially self-sufficient. Guevara v. Ubillus, 47 A.D.3d 715 (2nd Dept. 2008). In that case, petition for child support was denied where the petitioner, without good cause, abandoned the mother’s home on her 18th birthday in order to avoid parental control and to gain independence from her mother’s restrictive household rules; the petitioner was found to have abandoned her mother’s home against the mother’s will and without cause.
In Rubino v. Morgan, 224 A.D.2d 903 (3d Dept. 1996), the Appellate Division held that the lower correct properly terminated the father’s support obligation on the grounds that his daughter’s refusal to visit with him and the child’s unprovoked rejection of him constituted abandonment. The Third Department noted that at the time of the hearing, the daughter was 17 years old, and she had refused to visit with the father since she was 14 years old. Even after the daughter refused to visit with her father, he continued for years to send letters and cards to her. The letters were never answered. He also attempted to talk with the child, without success. His actions and requests were not arbitrary, and there was no evidence of malfeasance, misconduct or neglect. The Appellate Division upheld the lower court’s findings that the daughter chose to permanently breach her relationship with the father, notwithstanding her generalized claim of “emotional abuse”, and that the father did not contribute significantly to his daughter’s decision to distance herself from him.
Furthermore, where it can be established by the non-custodial parent that the custodial parent has unjustifiably frustrated the non-custodial parent’s right of reasonable access, child support payments may be suspended. Usack v. Usack, 17 A.D.3d 736 (3d Dept. 2005). In that case, the father had encouraged the children’s unbridled enmity toward, and total exclusion of, their mother through a course of conduct calculated to inflict the most grievous emotional injury upon her. The Appellate Division held that mother’s child support obligation should have been suspended due to the father’s deliberate actions in alienating the parties’ children from her.

Opt-Out Agreements and the Scope of the Child Support Standards Act

If parties choose to deviate from the provisions of the Child Support Standards Act with respect to the child support paid, such deviation will be upheld by the court provided the parties complied with such formalities as including calculations of the presumptive child support amount and the reasons for deviating from the CSSA. However, the parties frequently choose not only to deviate from the child support amount calculations, and add-ons such as child care and health care costs, but also to make recalculations of child support an annual or semi-annual event, or to include other items not included within the scope of the CSSA.

In Fasano v. Fasano, 43 A.D.3d 988 (2nd Dept. 2007), the parties included an annual cost-of-living-adjustment (“COLA”), with respect to the child support paid by the non-custodial parent. The Second Department found that the parties to the agreement did not opt out of the CSSA standards with respect to basic child support, but that the COLA provision included in the agreement represented potential future deviations from the CSSA basic child support obligation. The agreement did not state the reasons for including the COLA provisions. The Appellate Division held that the COLA provision represented an opt-out from the CSSA and was directly related to the child support. Since the reasons for including the COLA provision were not included in the agreement, the opt-out was invalid. The court vacated the COLA provision, while the basic child support provision of the agreement was not vacated.

However, not all provisions dealing with financial support of the children are considered to be within the scope of the CSSA. In Cimons v. Cimons, 53 A.D.3d 125 (2nd Dept. 2008), the Second Department held that the obligation to provide for the future college expenses of the children was not part of the parties’ basic child support obligation and therefore was not subject to the CSSA requirement that any deviation from statutorily-mandated child support obligations must be recited and explained in a stipulation of settlement. While the parties’ agreement regarding basic child support violated the CSSA by failing to recite and explain the reasons for the deviation, the provision concerning future college expenses was enforceable. The court held that unlike the basic obligation to provide child support, payment for a child’s college education is not mandatory. Absent a voluntary agreement, a parent might be required to provide support for his or her child’s attendance at college, but the determination of that obligation is dependent upon the exercise of the court’s discretion in accordance with Domestic Relations Law §240(1- b)(c)(7). The court further noted that the determination as to which additional aspects, if any, of the parties’ stipulation must be vacated along with the basic child support provision depends on the circumstances of the particular case and the nature of the obligations addressed in the other provisions of a stipulation. Some provisions may be so directly connected or intertwined with the basic child support obligation that they necessarily must be recalculated along with the basic support obligation. It found that unlike child care expenses and unreimbursed health care expenses, education expenses were not directly connected to the basic child support calculation and did not require the appropriate opt-out language.

The above cases represent the dangers involved any time the parties attempt to either opt-out from the CSSA or attempt to include items outside of the scope of the CSSA in their agreement. Any such agreement must be carefully drafted to make sure that it is not subsequently challenged and invalidated.

Non-custodial Parent’s Right to Particpate in Child Rearing Decisions

In 1996, Mathew’s parents, Jesus Fuentes and Karen Fuentes, were divorced. On August 1, 1996, “Order Directing Custody” was entered, granting Mathew’s mother exclusive custody of Mathew. Mathew attended New York City public schools, where he received special education services to accommodate his disability.

In 2000, because Mr. Fuentes believed that the education accommodations Mathew received were inadequate, he requested that Mathew be reevaluated for additional services. After the Committee on Special Education for the Hearing, Handicapped, and Visually Impaired determined that Mathew’s current services were adequate, Mr. Fuentes requested a hearing to review the committee’s determination. On January 8, 2001, the Impartial Hearing Office denied Fuentes’s request for a hearing. Its Chief Administrator based her denial on Mr. Fuentes’s custodial status. Because Mr. Fuentes was the non-custodial parent of Mathew, Chief Administrator determined that he was not the “person in parental relation” as defined in N.Y. Educ. Law § 3212 and concluded that Mr. Fuentes did not have the right to participate in educational decisions affecting Mathew and refused to process his father’s requests.

Mr. Fuentes, the non-custodial biological father, brought an action in the Federal Court for the Eastern District of New York against the Board of Education of the City of New York, under 42 USC §1983 and 20 USC §1415(f)(1) [IDEA], to review the City’s assessment of his son’s special educational needs and to be granted an impartial hearing for reconsideration of the City’s determination that his son did not need more special education than what he was receiving. After determining that, under New York law, a non-custodial biological parent has no right to make special education decisions, absent a court order or agreement between the parties affording such rights to the non-custodial parent, the Federal Court for the Eastern District of New York dismissed the complaint for lack of standing [FRCP 12(b) and (c)].

The Second Circuit held that although the First and Second Departments of the Appellate Division have held that a non-custodial parent, absent an order or agreement to the contrary, has no right to make educational decisions, the Second Circuit chose to have New York’s Court of Appeals definitively state the law of New York and, thus, certified the following question: “Whether, under New York law, the biological and non-custodial parent of a child retains the right to participate in decisions pertaining to the education of the child where (1) the custodial parent is granted exclusive custody of the child and (2) the divorce decree and custody order are silent as to the right to control such decisions.” Fuentes v. Bd. of Ed. of City of New York.

I have previously written about the custodial arrangements and the right of decision-making associated with each type of custody, and while there are many decisions on this issues from the Appellate Division, the Court of Appeals so far has not issued a definitive ruling on this issue. When the Court of Appeals decides this case, this is likely to be the controlling statement of New York law on the rights of non-custodial parents with respect to their right to be involved in educational and other decisions effecting their children. The Court of Appeals is likely to issue its decision in the next few months.

“Cohabitation” and Interpretation of Separation Agreement’s Provisions Applicable to Maintenance

A typical separation agreement that provides for post-divorce maintenance will have a number of provisions describing circumstances under which such maintenance can be terminated. One of the more common clauses speaks of the spousal maintenance being terminated where the former spouse is cohabitating with another adult of opposite sex for a period of time. Most separation agreements do not define cohabitation, but the courts have held that in order for cohabitation to take place, there must be a sexual relationship, as well as a degree of economic partnership between the former spouse and the unrelated adult of the opposite sex. In Graev v. Graev, __ N.Y.3d __ (October 21, 2008) the Court of Appeals had to decide whether the term “cohabitation” as included in the parties’ separation agreement was unambiguous, and whether the prior standard utilized by the courts was still valid. In a 4-3 opinion, a divided Court of Appeals ruled yesterday that “cohabitation” is an ambiguous term whose definition for purposes of potential violations of separation and divorce agreements depends on what the parties understood it to mean when making their settlements. While all of the judges agreed that a couple need not share household expenses or function as a single economic unit to be cohabitating, the Court was divided over how to resolve the dispute between Linda and Lawrence Graev and the $11,000 in monthly maintenance fees he contends she forfeited by living with a boyfriend for at least 60 straight days in violation of their separation agreement. Since the Court of Appeals held that the term “cohabitation” as contained in the parties’ separation agreement was ambiguous, it remanded the case back to the trial court to hold a fact-finding hearing to determine what the parties’ understanding of this term was at the time the separation agreement was executed. As the Court of Appeals pointed in the footnote, “[t]he wisest rule, of course, is for parties in the future to make their intentions clear by careful drafting.”