Allocation of Child Care Costs in Child Support Cases

Under New York law, child support consists of two elements: “basic” child support and the “add-ons.”  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.

The parties occasionally dispute whether child care expenses are reasonable.  Most often, these disputes tend to focus on the cost and need for daycare. Thus, the court usually needs to conduct a fact finding hearing to determine whether such costs are appropriate and the child care was actually needed. In Pittman v. Williams, 127 A.D.3d 755 (2nd Dept. 2015), the court reviewed the parties’ child care costs and determined allocation of the costs. The court held that

where the custodial parent is working . . . and incurs child care expenses as a result thereof, the court shall determine reasonable child care expenses and such child care expenses, where incurred, shall be prorated [and] [e]ach parent’s pro rata share of the child care expenses shall be separately stated and added” to the parent’s basic child support obligation (see Matter of Scarduzio v Ryan, 86 AD3d 573, 574 (2nd Dept. 2011)). Here, the Supreme Court properly determined that the mother incurred $425 in child care expenses each week. However, the court erred in calculating the amount of child care expenses to be paid by the father. Since the child care provider cared for both the subject child, as well as the mother’s son from a previous relationship, the child care expenses should be divided equally between the two children. Consequently, the cost of caring for the subject child is $212.50 per week, and the father’s pro rata share of the child care expenses is $191.25 per week.

Thus, when the need and the costs of child care are disputed, both of these issues need to be analysed and the parties need to be able to offer evidence either in support or opposition. Parenthetically, unless the costs of child care are grossly excessive, courts do not tend to deny parties reimbursement in situations where the child care was needed.

Terminating Spousal Support Provisions After Divorce Due to Change In Circumstances

In New York, spousal support, also sometimes referred to as “alimony” or “spousal maintenance” can be granted in a divorce case to either spouse by the court pursuant to Domestic Relations Law §236. Alternatively, the parties can agree to a specific amount of maintenance, its duration, and the circumstances under which it will terminate in their settlement agreement.

Factors that a judge or the parties will consider in determining spousal support, among others, include:

The duration of the marriage and the age and health of both parties;
The present and future earning capacity of both parties;
The ability of both to become self-supporting;
The reduced or lost lifetime earning capacity resulting from having foregone or delayed education, employment training or career opportunities during the marriage;
The presence of children;
Tax consequences.

Even once the amount of maintenance is determined and included in the judgment of divorce or settlement agreement, spousal maintenance can be modified.

However, if the maintenance was set by the parties’ settlement  agreement, the party seeking its modification due to a change in circumstances will have to meet a significant burden of proof. Specifically, the party seeking the change will have to show prima facie evidence of “extreme hardship” before the court can hold a hearing to resolve these issues. Extreme hardship means that the payor’s circumstances are so adverse that the party can’t meet its living expenses without modifying spousal support. In a recent decision, McKelvey v. McKelvey, 2015 N.Y. Slip. Op. 02830 (3rd Dept. 2015), the Appellate Division found that the husband presented such evidence when he was able to show that “the undisputed proof indicating that the husband earns, after taxes, less than his monthly support obligation was sufficient to demonstrate prima facie evidence of extreme hardship, and Supreme Court should have held a hearing on his request to modify his support obligation.” Once such evidence is presented then the court hearing the case would hold a fact-finding to determine how spousal maintenance should be modified.

If spousal maintenance was set by a judge after a hearing, the party seeking the modification must establish a substantial change in circumstances and show that the needs of the dependent spouse or financial abilities of the paying spouse that warrant modification. The party making such request would face a significant burden and the court will have to consider such factors as the party’s current and past earnings, costs of living, financial obligations, as well as assets and liabilities.  In Klapper v. Klapper, 204 A.D.2d 518 (2d Dept. 1994), 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.”

Further, a party who willfully or voluntarily reduces income will not receive a reduction in support payments. If evidence of such actions is presented to the court, the party seeking modification will not receive and is also likely to be ordered to pay the other spouse’s attorneys’ fees.

Enforcement of Payment Obligations Pursuant to Judgment of Divorce

One of the issues that occurs in cases where a party is ordered to make spousal maintenance or child support after the judgment of divorce is entered, is that party may fail to make such payments. This brings up a question of what remedy should be utilized under those circumstances.

A recent decision of Keller v. Keller, 2015 N.Y. Slip. Op. 02453 (2d Dept. 2015) demonstrates how the court approaches a contempt application based upon payor’s failure to pay child support and related expenses. In Keller, a contempt application was brought after the money judgment for child support went unpaid for a number of years, and 6 Family Court orders were apparently ignored by the payor. In discussing the remedies available, the Appellate Division stated that

Pursuant to Domestic Relations Law § 245, a spouse may be punished for contempt for failing to make payments pursuant to [a judgment of divorce], but it must appear presumptively, to the satisfaction of the court,’ that payment cannot be enforced pursuant to Domestic Relations Law §243 (sequestration), Domestic Relations Law §244 (money judgment), CPLR §5241 (income execution) or CPLR §5242 (income deduction)” (Jones v. Jones, 65 A.D.3d 1016, 1016; see Klepp v. Klepp, 35 A.D.3d 386; Higbee v. Higbee, 260 A.D.2d 603). Thus, contempt may be warranted where the record demonstrates “that resort to other, less drastic enforcement mechanisms [has] been exhausted or would be ineffectual” (Capurso v. Capurso, 61 A.D.3d 913, 914; see Jones v. Jones, 65 A.D.3d at 1016; Rosenblitt v. Rosenblitt, 121 A.D.2d 375).

While discussing the specific circumstances of the case, the Appellate Division stated that plaintiff repeatedly failed to pay child support as directed in the parties’ judgment of divorce, or to abide by the court orders and money judgments subsequently entered against him on account of child support arrears and related expenses. The record further showed that the defendant either exhausted all enforcement remedies other than contempt, or that such further attempts “would have been futile”. The court further held that the plaintiff had the burden of going forward with evidence of his inability to make the required payments. After reviewing the facts and applicable law, the Appellate Division found that holding plaintiff in contempt of court was the correct remedy.

If Keller was brought in Family Court, the court’s would apply a different set of rules. In Family Court, under Family Court Act §454(3), there is a presumption that a parent’s failure to pay court ordered child support is willful. Payee’s sworn testimony as to nonpayment of ordered child support payments from payor is a prima facie evidence of a willful violation. Once the violation is shown, the burden shifts to the payor to demonstrate inability to make the required payments.  Upon the court’s finding of willful violation, the court may grant attorneys’ fees, enter a money judgment, make an income deduction order, require an undertaking, make a sequestration order or suspend the respondent’s driving, professional or business license. Further, the court may direct incarceration of 6 months as a remedy as well. Thus, defendant would not have to make a showing that all available remedies were exhausted.

The above discussion illustrates that other remedies should always be considered before seeking a finding of contempt since a finding of contempt may require a substantial motion practice and, most likely, a hearing.  Thus, contempt motions should not be brought unless all other remedies were exhausted or, alternatively, if nonpayment of child support, a willful violation petition should be filed in Family Court.

Minors and Rescission of Acknowledgment of Paternity

A recent bill signed into law by Governor Cuomo, allows minors who acknowledged paternity of their children to have a brief period of time when they turn 18 to seek to rescind that acknowledgment . Family Court Act §516-a will permit young men who signed the acknowledgment of paternity up to 60 days, starting on their 18th birthday, to file a petition seeking to vacate.

Under the present law, if someone over the age of eighteen has signed an acknowledgment of paternity, the signatory may seek to rescind the acknowledgment by filing a petition with the court to vacate the acknowledgment within the earlier of sixty days of the date of signing the acknowledgment or the date of an administrative or a judicial proceeding (including, but not limited to, a proceeding to establish a support order) relating to the child in which the signatory is a party. The “date of an administrative or a judicial proceeding” means the date by which the respondent is required to answer the petition.

Sponsors of the legislation had said that seeking a rescission of paternity will not necessarily extinguish the paternal rights but could result in a judge ordering a DNA test to conclusively establish or disprove parenthood. Signing the acknowledgment of paternity is a serious matter since it carries responsibilities, such as paying child support for non-custodial children until they turn 21.

According to the legilative history of the statute, the change was prompted by the recognition that minors often sign acknowledgments without guidance from their parents or other adults, or sign them for children they know are not theirs without realizing the long-term ramifications. If acknowledgment is signed and, subsequently, there is evidence that the party who signed it is not the birth father, it may be too late to do anything about it.

A safer course of action is not to sign an acknowledgment. If the acknowledgment of paternity is not signed, then paternity will needs to be established, and Family Court is the proper venue for filing a paternity petition. If the either parent files a petition for Paternity, then the father can either consent to paternity or, if he does not, the court can order Genetic Marker (DNA) Test to confirm that he is actually the biological father. Generally, the DNA test is conclusive evidence of who the biological parent is. However, before the DNA test is ordered by the court, it will have to address any equitable estoppel issues that may arise.  Assuming that equitable estoppel issues have been resolved, and the DNA test takes place, then the Court will issue an Order of Filiation, which is provided to the DHMH for the issuance of a new birth certificate.

Equitable estoppel in those situations may be raised both offensively and defensively by either the man initially believed to be the biological father or the man believed to be the true biological father.  Not all fathers cooperate since an Order of Filiation typically results in an order for child support and, possibly, a liability for birth expenses.

Mother Ordered to Stop Posting About Her Children on Facebook

As social media continues to permeate every aspect of our lives, there is a continuing controversy about parents should post information about their children on social media sites. The controversy is grounded in both safety concerts, as well as concerns that children, who have not consented to having this information shared with the world, may suffer an invasion of their privacy or emotional harm.   A recent decision demonstrates how these issues can be addressed by the courts in New York.

In Melody M. v Robert M., 103 A.D.3d 932 (3rd Dept. 2013), the Third Department affirmed a Family Court order that among other changes to the prior joint custody, issued an order of protection against the mother that prohibited her from, among other things, posting any communications to or about the children on any social network site. From the decision, it appears that while the parties initially had a joint custodial arrangement, that arrangement broke down primarily due to the mother’s pattern of inappropriate behavior and its effect on the parties’ oldest child, who had mental health issues. The mother did not participate in the child’s counseling because she did not like the therapist, or follow therapist’s  recommendation with respect to household routines. The mother also testified that she frequently called the father for him to take the oldest child away during her parenting time because she could not deal with his behavior. The mother admitted that she swore and yelled at the oldest child, and often resorted to physical means to deal with him.

In addition, the court quoted some of the mother’s testimony which was astounding:

[mother] utilized Facebook to insult and demean the child, who was then 10 years old, by, among other things, calling him an “asshole.” She testified without remorse that she did so because that is what “[h]e is,” and she thought it was important for her Facebook friends to know this. Charitably stated, her testimony reflected a lack of insight as to the nature of her conduct toward her oldest child.

As a result of the mother’s use of physical force and disparagement of the oldest child on Facebook, the father had filed a violation petition. Since there was sufficient evidence regarding the mother’s inappropriate use of the Internet to demean and disparage the oldest child, as well as her lack of remorse or insight into the inappropriateness of such behavior, the Appellate Division held that the lower court was justified in issuing an order of protection.

It is clear that the mother’s behavior was clearly inappropriate and that the court was justified in protecting the child. Just like with anything else involving the children, if you want to maintain custody of your children in the age of social media, it is best not to disparage them on Facebook.

There Is No Right to Grounds Trial In A No-Fault Divorce Case

I have previously written on the issue of whether there was a right to trial in a divorce case brought under the no-fault grounds. Earlier, trial level decisions were split, with some courts holding that a party was still required to establish no-fault grounds at trial, and other courts holding that a sworn statement that the marriage was irretrievably broken for a period of 6 months or longer was sufficient to establish that party’s right to divorce.

Finally, the Appellate Division, Fourth Department, issued a decision resolving this issue. In Palermo v. Palermo, 2012 N.Y. Slip Op. 07528 (4th Dept. 2012), the court affirmed Justice Dollinger’s decision holding that there is no right to dispute an allegation of irretrievable breakdown under the no-fault divorce ground provided by DRL §170(7). Appellate Division agreed with the key language in Justice Dollinger’s decision which stated that:

Under DRL §170(7), the grounds cannot be disputed. Either a party swears the marriage is irretrievably broken or they do not. The grounds are established by the oath; there is no legislative requirement of a judicial finding on the reliability or veracity of the oath.

As the no-fault statute requires, in order for a judgment of divorce to be entered, all the issues relating to the divorce, including equitable distribution, maintenance, child custody and support need to be resolved before a party can be granted a divorce.

The Appellate Division’s decision in Palermo is significant since it clarifies the Legislature’s intent in creating a true no-fault divorce in New York. Further, as a result, the parties will be able to avoid costly grounds trials that usually result in added animosity between the parties.

A Cause of Action for DRL 170(7) Can Be Added to A Divorce Complaint Filed Prior to October 2010

One of the more interesting procedural issues that arose after the New York State Legislature added a cause of action under Domestic Relations Law §170(7), irretrievably broken marriage for a period of 6 months or longer, is whether this cause of action can be introduced in divorce actions filed prior to the statute’s enactment. At least one court addressed this issue by holding that a separate action can be filed by the defendant alleging a cause of action under DRL §170(7), and the two actions can be consolidated.

A recent decision by Justice Richard A. Dollinger of the Monroe County Supreme Court,  G.C. v. G.C., 2012 N.Y. Slip Op 50653(U) (Sup. Ct. Monroe. Co. 2012), held that a defendant in a divorce action, filed prior to the enactment of the no-fault statute, can assert a counterclaim based on no-fault grounds.  Specifically, Justice Dollinger reviewed the procedural aspects related to counterclaims and analyzed whether such counterclaim would prejudice plaintiff’s substantive rights in the divorce.

The facts of the case are as follows. The plaintiff brought a divorce action prior to October 10, 2010. He alleged that his wife had engaged in cruel and inhuman treatment toward him. The wife answered the complaint, denying the specific allegations, and has stated that she would contest the grounds for the divorce.  Meanwhile the parties lived apart and the wife moved to Ohio.

The husband moved to amend the complaint to assert two new grounds: a ground under Section §170(2) for abandonment and a claim under Section §170(7) for an “irretrievably broken” marriage. The wife opposed the abandonment amendment, claiming that the husband can not allege abandonment when it occurred during a year after the filing of complaint and that its assertion, now, after the action has been pending for more than two years, is untimely and prejudicial. The wife also opposed the amendment on the grounds of Section §170(7), arguing that this recently-enact statutory amendment can not be asserted in this action because the complaint was filed prior to the effective date of the change. She argued that the husband, in order to pursue this claim, needed to file a new complaint. The husband argued that if he files the new complaint with a Section §170(7) cause of action, he could then move for consolidation under CPLR §602(a), and the cases would likely be consolidated because they involve the same facts.

CPLR §3025(b), by its express language, envisions that other causes of actions, based on developing facts that occur during the pendency of the action, can be the subject of a proposed amendment to the original compliant. The statute uses the terms “subsequent transactions or occurrences” as the basis for a proposed amendment. The statute also permits an amendment “at any time.” CPLR §3025(b).

A cause of action under Domestic Relations Law §170(2) requires allegations that a spouse’s actual physical departure from the marital residence for one year is unjustified, voluntary, without consent of the plaintiff spouse, and with the intention of the departing spouse not to return. The amended complaint, on its face, met this minimal pleading requirement since it alleged that the wife left the marital residence in 2009, has not returned and her leaving was without justification.

In October, 2010, the Legislature added a statutory change to the Domestic Relations Law which created “no-fault divorce” and permitted one party to be granted the divorce upon a sworn declaration that the marriage was “irretrievably broken for a period in excess of six months” and the parties had agreed on all the issues related to support and equitable distribution. DRL §170(7). The statutory amendment states that the “act . . . shall apply to matrimonial actions commenced after the effective date.”, specifically after October 12, 2010. The Legislature apparently intended not allow litigants to simply amend their complaints, after the amendment took effect, and allow those claims to proceed to adjudication on the basis of the new “no-fault” allegations by claiming that the six months of “irretrievable breakdown” included time before the effective date of the amendment.

After reviewing statutory history, Justice Dollinger held that the husband was not seeking any relief other than that sought in the original complaint: a divorce and accompanying property distribution. By virtue of the statutory change, the husband, having waited six months after its effective date, can now meet the time requirement of six months because all of the time accrued after the amendment took effect. Justice Dollinger further found that  the husband was merely seeking to “invoke what the Legislature extended to him: a cause of action that has ripened because more than six months have passed since the date of the amendment and during that time, the husband swears that his marriage has been irretrievably broken.”

I think that this was the right result. If a party is able to assert a cause of action under DRL §170(7), the length and expense of the case are likely to be reduced since a trial on the issue of grounds will no longer be required.  This is likely to result in shorter and less costly divorce cases.


Need to Preserve Relationship with Parent Does Not Take Precedence Over Economic Factors in Relocation Cases

In Butler v Hess, 85 A.D.3d 1689 (4th Dept. 2011), petitioner father filed a petition seeking to modify the parties’ existing joint custodial arrangement. Specifically, respondent mother had primary physical residence and the father had visitation. The father sought to prevent the mother from relocating with the child to Pennsylvania and sought sole custody of the child.

The mother filed a cross petition seeking permission for the child to relocate with her to Pennsylvania. The trial court denied mother’s application and prohibited her from relocating to Pennsylvania. The Appellate Division agreed with mother’s contentions that Family Court erred in denying her cross petition.

The Appellate Division found that the record established that, pursuant to the existing arrangement, the father had regularly scheduled visitation with the child. The mother remarried in December 2003, when the child was six years old, and the mother and the child began living with the mother’s husband at that time. In December 2006, the mother lost her job as a result of budget cutbacks and, in July 2007, the mother’s husband lost his job after his position was eliminated. The mother’s husband accepted a job in Pennsylvania in October 2007, which was the basis for the mother’s cross petition seeking permission to relocate with the child to Pennsylvania to join her husband. The Court concluded that the mother established by the requisite preponderance of the evidence that the proposed relocation would serve the child’s best interests”. Tropea v. Tropea, 87 N.Y.2d 727, 741 (1996). The Court of Appeals in Tropea held that economic necessity may present a particularly persuasive ground for permitting the proposed move. According to the Appellate Division, the record reflected that the trial court did not adequately, if at all, consider the financial considerations underlying the requested relocation. The mother requested permission to relocate because she and her husband lost their jobs within a relatively short period of time. The mother’s husband testified that both his health insurance, which also covered the mother and the child, and his severance pay ran out in August 2007. After the mother’s husband lost his job, he and the mother depleted their savings and their house was placed into foreclosure. The mother and her husband testified that they unsuccessfully attempted to locate jobs in Western New York and that the mother’s husband accepted the job in Pennsylvania out of financial necessity.

The trial court based its determination primarily on its conclusion that the relocation would “qualitatively affect” the child’s relationship with the father. The Appellate Division held that this was erroneous because the need to give appropriate weight to the feasibility of preserving the relationship between the parent without primary physical custody and [the child through suitable visitation arrangements does not take precedence over the need to give appropriate weight to the economic necessity for the relocation. Further, the record established that the proposed relocation would not have a substantial impact on the visitation schedule. The mother and the husband testified that they would transport the child to and from Pennsylvania every other weekend, and they offered to pay for a hotel for the father in Pennsylvania on his off-weekends so that he could exercise additional access with the child. The mother further testified that the holiday access schedule would remain the same because she and her husband would be returning to Western New York at those times to visit with their respective families, who resided there. In addition, the mother’s husband purchased video conferencing equipment for his household and the father’s household to enable the father and the child to communicate during the week and on the father’s off-weekends.

Thus, the mother established “the feasibility of preserving the relationship between the [father] and child through suitable visitation arrangements” Tropea, 87 N.Y.2d at 741. Therefore, the Appellate Division reversed the lower court and permitted relocation.

While the appellate court recognized the mother’s need to relocate, it is unfortunate that it took a situation where the mother and her husband both lost their job and exhausted all of their financial resources and their house went into foreclosure. In my opinion, it would be appropriate for the court to consider the parties’ economic circumstances well before they become dire. It today’s economy, it is likely that we will see these issues addressed by the courts time and time again.

Family Court Referees and Their Authority to Hear Cases

Most of the cases in Family Court are decided by Family Court Judges who preside over most Family Court hearings. The Family Court Judges, here in Monroe County and elsewhere in New York State, typically hear child custody, visitation, adoption, juvenile delinquency and other cases. However, here in Monroe County, Court Attorney Referees hear custody, visitation, and order of protection cases. Family Court Attorney Referees are appointed pursuant to the Family Court Act and CPLR.

One of the first things that takes place in a case before a Family Court Attorney Referee is that the parties and their attorneys will be asked if they will agree to the Referee’s jurisdiction to hear and determine the matter. If the parties agree, the Referee will asked them to sign a stipulation confirming their consent. If the parties do not consent, the case is usually removed and heard by the Family Court Judge.

It is critical for the Referee to make sure that the parties consent to his jurisdiction to hear the case. A recent case, Gale v. Gale, 2011 NY Slip Op 06490 (2nd Dept. 2011), demonstrates what happens if the referee fails to obtain that consent. In Gale, the mother filed a petition seeking to modify provisions of the parties’ judgment of divorce. The case was assigned to a Family Court Attorney Referee who heard the case and ultimately modified custody provisions of the judgment of divorce, granting the petitioner sole custody of the children. The father appealed, arguing that the referee lacked jurisdiction to hear the case since the referee had failed to have the parties sign the stipulation or otherwise establish that the parties consented to her jurisidiction. The Appellate Division agreed with the father and reversed.  Specifically, the Appellate Division stated that

Upon review of the record, we find that the parties did not stipulate to a reference in the manner prescribed by CPLR 2104. In any event, there is no indication that there was an order of reference designating the referee who heard and determined the petitions at issue here. Contrary to the mother’s contention, the father did not implicitly consent to the reference merely by participating in the proceeding without expressing his desire to have the matter tried before a judge. Furthermore, a stipulation consenting to a reference to a specified referee, executed by the parties in connection with the father’s previous petition to modify the visitation schedule, expired upon completion of that matter and did not remain in effect for this matter.

Accordingly, the referee had no jurisdiction to consider the father’s petitions related to custody and visitation and the mother’s petition to modify custody, and the referee’s order determining those petitions must be reversed. (citations omitted)

While the parties cannot choose the person who will decide their case, they do not have to agree to the Family Court Attorney Referee to hear and decide it. Sometimes there are reasons to have the case heard by a Family Court Judge, and the parties should consider not agreeing to the referee’s jurisdiction under appropriate circumstances.

Can a Parent Travel with Young Child Abroad Over Custodial Parent’s Objections?

One issue that may come up in custody cases is whether a nonresidential parent has ability to take a child abroad during his or her period of visitation. It is not uncommon for a residential parent to object to such request, and sometimes parties wind up in court seeking a determination whether such travel can be permitted.

In a recent case, Russo v. Carmel, 2011 N.Y. Slip. Op. 05889 (4th Dept. 2011), the Appellate Division, Fourth Department, permitted the father to travel to Italy with his two year old child for a period of not more than 15 days on 60 days’ notice to the mother. The mother opposed the request, arguing that the child was never away from the mother for longer than 48 hours, that the father’s visitation was limited to 48 hour periods and that the child would be in an unfamiliar environment with relatives who were unknown to the child.  The court held that the record established that, although the father’s visitation with the child was limited, the father has a close bond with her and, during visitation, he prepared her meals, bathed her, administered medication as necessary and took her on outings. Further, the mother did not express any concerns that the father would abscond with the child. The court concluded that it is in the best interests of the child to travel with the father to Italy to meet her extended family.

While in most cases the court is unlikely to allow a parent to travel abroad with a very young child, in this case, the father was able to present convincing evidence that the trip was intended to introduce the child to her relatives abroad. Further, the mother was unable to present any evidence of the father’s inability to take care of the child and was not afraid that the father would refuse to come back to the United States. In view of these facts, the trial court’s decision and the Appellate Division’s decision were clearly correct.  While the residential parent may have a significant measure of control over non-residential parent’s ability to travel with the child, the residential parent should not raise objections unless there is specific evidence that such travel would be inappropriate and not in the best interests of the child.