Wife Receives a Credit of 50% of Husband’s Premarital Debt Paid During the Marriage

In Mahoney-Buntzman v. Buntzman, 51 A.D.3d 732 (2nd Dept. 2008) the Appellate Division held that the wife should have been awarded 50% credit for student loan debt incurred by husband to obtain a doctoral degree. During the parties’ marriage, the husband took out a student loan in the amount of $48,162.90 to pay for a doctoral degree in education, which was satisfied with marital funds. The wife contended on appeal that the trial court erred in failing to award her a 50% credit with respect to the student loan. The Appellate Division agreed. The husband’s expert testified that the doctoral degree earned by the husband during the marriage did not enhance his earnings, and thus, provided no benefit to the marriage, and there was no distributive award of the value of the doctorate degree to the wife in light of its zero enhanced earning capacity value. As result, the court concluded that the student loan debt was incurred to satisfy the husband’s separate interest and therefore was his own separate obligation. Accordingly, the trial court erred in failing to award the plaintiff a 50% credit, or $24,081.45, for the student loan debt incurred by the husband during the marriage to obtain this degree.
The Appellate Division also agreed with wife’s contention that the trial court erred in not crediting her with 50% of the defendant’s pre-marital debts paid with marital funds during the marriage such as maintenance paid to the husband’s first wife in the total amount of $58,545, and $7,000 paid in 1998 as a settlement of a loan for a boat purchased by the husband before the marriage but surrendered to the bank in 1993 prior to the marriage for nonpayment of the boat loan. The husband’s maintenance obligation to his first wife and the boat loan constituted debts incurred by him prior to the parties’ marriage and were solely his responsibility. Accordingly, the trial court erred in failing to award the plaintiff additional credits of $29,272.50 as to the maintenance payments to the husband’s first wife and $3,500 as to the boat loan.
Thus, with respect to his doctoral degree, the husband was successful in convincing the trial court that the degree did not enhance his earnings. If the wife was successful in establishing that the degree resulted in enhanced earnings, those enhanced earnings would be subject to distribution. Therefore, the husband would owe something to the wife under either scenario.

Good Faith Allegation of Abuse Cannot Be Held Against Accuser in Custody Proceeding

Recently, in divorce and custody cases, the so-called “parental alienation” factor has become particularly prominent among the statutory criteria dealing with custody. The court decisions have described “parental alienation” in terms of failure to support the child’s relationship with the non-custodial parent. This particular issue has carried a tremendous force in custody cases, and often was used to override the primary caregiver criterion. The significance of “parental alienation can be explained as follows. If “parental alienation” is proven, it often has resulted in a change in custody despite the long-standing parenting arrangements that have been successful otherwise.
The problem with claim of “parental alienation” is that in some cases judges have treated allegations of abuse and neglect that could not be proven as tantamount to “false” allegations maliciously brought to advance an agenda of alienation. This has placed concerned parents between the proverbial rock and the hard place. If they act in good faith to protect their child, they do so at risk of losing custody. If they don’t act, they are abdicating their parental obligation to protect their child. The Legislature has acted in response to this problem and the Governor has signed into law an amendment to DRL § 240 to provide protection for litigating parents who report abuse or neglect in good faith and based on a reasonable belief that the allegation is legitimate.
Domestic Relations Law § 240, subdivision 1 (a) was amended to provide that a good faith allegation of abuse cannot be held against the accuser in child custody proceedings. The amendment to the statute is intended to ensure that the accuser engaging in a good faith effort to protect or seek treatment for the child due to the child abuse or neglect cannot have these actions used against them when determining custody or visitation. If a parent makes a good faith allegation based on a reasonable belief which is supported by facts that the child is the victim of child abuse, child neglect, or the effects of domestic violence, and if that parent acts lawfully and in good faith in response to that reasonable belief to protect the child or seek treatment for the child, then that parent may not be deprived of custody, visitation or contact with the child, or restricted in custody, visitation or contact, based solely on that belief or the reasonable actions taken based on that belief. If an allegation that a child is abused is supported by a preponderance of the evidence, then the court must consider such evidence of abuse in determining the visitation arrangement that is in the best interest of the child, and the court may not place a child in the custody of a parent who presents a substantial risk of harm to that child. Laws of 2008, Ch 538, effective September 4, 2008.

Family Court and Willful Failure to Pay Child Support

There is a presumption, applicable to child support enforcement proceedings in Family Court that a party, against whom a child support order was issued, has sufficient means to support his/her minor children. See Family Court Act § 437. The evidence that the party directed to pay child support has failed to pay support as ordered, constitutes “prima facie evidence of a willful violation”. Family Court Act § 454(3)(a). Once the petition alleging willful violation of a child support order was filed in the Family Court, the burden then shifts to respondent to adduce some competent, credible evidence of his/her inability to make the required payments. If the requisite showing is not made, the party will be found to have willfully failed to pay child support. Once this finding is made, the party is liable to a range of penalties, including attorneys fees and possible incarceration.

This presumption does not apply to child support enforcement proceedings brought in Supreme Court under the Domestic Relations law. If an enforcement proceeding is brought in Supreme Court, the usual remedies sought are a judgment for any unpaid arrears, attorneys fees and, possibly, a finding of contempt. The burden of proof applicable to contempt proceedings is much higher than that applicable to the proceedings brought under Family Court Act § 437.

Calculations of Child Support in New York

The New York courts use a statutory guidelines to determine what child support amount the non-custodial parent is obligated to pay. The guidelines as applicable to the Supreme Court in actions for separation and divorce are contained in Domestic Relations Law §240 and its counterpart for the Family Court is contained in Family Court Act §413. New York child support amounts are based partly on the non-custodial parent’s adjusted gross income and partly on how many children are on the order. The court determines the non-custodial parent’s gross income, and then deducts from that amount Medicare, social security tax, New York City or Yonkers tax, and other allowable deductions to establish the non-custodial parent’s adjusted gross income. An identical calculation is performed with respect to the income of the custodial parent. The court then multiplies the combined adjusted gross income by the standard guideline percentage for the number of children. These percentages are 17% for one child, 25% for two children, 29% for three children, 31% for four children, and at least 35% for five or more children. Subsequently, that child support amount is multiplied by the ratio of non-custodial parent’s adjusted gross income to the combined adjusted gross income.

The standard guideline is applied to most parental earnings up to $80,000 (minus certain local and social security tax amounts). This includes any worker’s compensation, disability payments, unemployment benefits, social security payments, and many other forms of income. Beyond $80,000, the courts determine whether or not to use the percentage guidelines, and may consider other factors in determining the full support amount.

The State of New York provides for interest on missed payments and adjudicated arrears at a rate of 9% per year, but only on arrearages reduced to a money judgment by the courts.

Change in Health Condition and Maintenance

In order to obtain a reduction of maintenance, the party seeking the reduction bears the burden of establishing a substantial change of circumstances. Lipow v. Lipow, 110 A.D.2d 756 (2d Dep’t 1985); Patell v. Patell, 91 A.D.2d 1028 (2d Dep’t 1983); Hickland v. Hickland, 56 A.D.2d 978 (3d Dep’t 1977). Some courts have held that an unanticipated medical condition which befalls a party after a judgment of divorce was entered, may be a basis for modifying that party’s maintenance obligation. Bischoff v. Bischoff, 159 A.D.2d 404 (1st Dep’t 1990); Wantuch v. Wantuch, 56 A.D.2d 866 (2d Dep’t 1977).

In Praeger v. Praeger, 162 A.D.2d 671 (2d Dep’t 1990), a husband agreed to certain maintenance obligations with knowledge that he had a history of heart disease, heart surgeries and several heart attacks. Thereafter, he suffered a stroke which he claimed rendered him permanently disabled and unable to perform his profession. The husband pointed to that stroke as a basis for modifying his maintenance obligation. In light of his condition at the time of the divorce, the court refused even to grant a hearing, absent additional medical and financial evidence that a substantial change of circumstances had occurred.

If after the judgment of divorce is entered, the party paying maintenance develops a health condition that impairs his/her ability to pay maintenance, any application seeking modification of maintenance must be supported with admissible medical evidence and an evidentiary showing must be made that the health condition has impaired that party’s financial situation.

Duration and Amount of Maintenance

Domestic Relations Law §236(B)(6)(a) sets forth a number of factors which, in combination, allow the court to determine the appropriate duration and amount of maintenance. The following discussion of recent cases describes how the courts applied statutory criteria to various factual situations.
It is well settled that the amount and duration of maintenance are matters committed to the sound discretion of the trial court. Frost v. Frost, 49 A.D.3d 1150 (4th Dept. 2008); Booth v. Booth, 24 A.D.3d 1238 (4th Dept. 2005). Each case must be considered based on the unique facts and circumstances it presents. Xikis v. Xikis, 43 A.D.3d 1040 (2nd Dept. 2007), appeal denied, 10 N.Y.3d 704 (2008).
When fashioning a maintenance award, the trial court is required to take into account the parties’ pre-separation standard of living. Fitzpatrick v. Fitzpatrick, 43 A.D.3d 991 (2nd Dept. 2007). The court must also consider the reasonable needs of the recipient spouse, and the pre-separation standard of living in the context of the other factors set forth in Domestic Relations Law §236(B)(6)(a), and then, in its discretion, determine a fair and equitable maintenance award. Id.
In Booth v. Booth, 24 A.D.3d 1238 (4th Dept. 2005), the Fourth Department perceived no abuse of discretion in the award of maintenance to the plaintiff, where the record established that defendant had steady employment and received supplemental income from Air Force disability payments and rental properties. In addition, defendant received Social Security payments for each child based on plaintiff’s disability, and plaintiff had been ordered to pay child support to defendant. In comparison, plaintiff’s income consisted of Social Security disability payments and minimal wages from part-time employment at a fast-food restaurant. Although her income exceeded her expenses, plaintiff had health problems that affected the stability of her employment. The lower court’s award of maintenance to the plaintiff thus was upheld on appeal. Id.
In Pickard v. Pickard, 33 A.D.3d 202 (1st Dept. 2006), appeal dismissed, 7 N.Y.3d 897 (2006), lifetime maintenance of $3,500.00 per month was appropriately awarded to the plaintiff in view of the 23-year duration of the parties’ marriage, plaintiff’s role in raising and educating the parties’ children, plaintiff’s minimal job skills, plaintiff’s extended absence from the workforce, and the parties’ respective financial positions. Id.
Similarly, in Xikis v. Xikis, 43 A.D.3d 1040 (2nd Dept. 2007), appeal denied, 10 N.Y.3d 704 (2008), the parties lived together for 28 years and were married for over 18 years. The defendant was not employed during most of the marriage, had limited education and skills, and was 60 years old at the time of the judgment. In addition to the properties awarded to the defendant by the Supreme Court, in the exercise of discretion and upon consideration of all relevant factors, an award of $1,500 as monthly non-durational maintenance was deemed to be appropriate. Id.
In Fitzpatrick v. Fitzpatrick, 43 A.D.3d 991 (2nd Dept. 2007), the Supreme Court was found to have providently exercised its discretion in awarding maintenance to the plaintiff-wife in the sum of $3,000 per month until she reached the age of 65.
Likewise, in Nichols v. Nichols, 19 A.D.3d 775 (3rd Dept. 2005), Supreme Court did not abuse its discretion in fixing maintenance at $350 per week until the plaintiff turned 62, a period of six years. In rendering its decision, the court noted that the Defendant earned $96,910 annually, while the plaintiff received only $18,056 annually from a disability retirement pension and earnings from part-time employment. The court also considered the plaintiff’s age and poor health, the gross disparity between the parties’ incomes, and the unlikelihood of plaintiff becoming self-supporting. Id.
In Taylor v. Taylor, 300 A.D.2d 298 (2nd Dept. 2002), the defendant contended that the Supreme Court erred in continuing his maintenance obligation until the plaintiff-wife attained the age of 65 or until he retired, whichever occurred later. The parties were married for over 27 years when the action was commenced. The plaintiff had ceased working outside the home to raise the parties’ children, and the parties stipulated that her medical condition precluded gainful employment in the future. In contrast, the defendant was steadily employed during the marriage and had the potential to increase his future earnings. Given the disparity in the parties’ financial circumstances, the lower court was found to have providently exercised its discretion in directing the defendant to pay maintenance until the plaintiff became eligible for full Social Security benefits at the age of 65, or until the defendant retired, whichever occurred later, or until the death or remarriage of the plaintiff. The appellate court opined that, considering the factors relevant to an award of maintenance, particularly the plaintiff’s inability to earn any income, the Supreme Court providently exercised its discretion in determining that the plaintiff was entitled to maintenance payments sufficient to meet her reasonable expenses.
In Brzuszkiewitz v. Brzuszkiewitz, 28 A.D.3d 860 (3rd Dept. 2006), the appellate court rejected defendant’s contention that Supreme Court abused its discretion by awarding plaintiff non-durational maintenance. The matrimonial action was filed after the parties had been married for 23 years and had three children, one of whom still was under 21 years of age at the time of the appeal. The record reflected that Supreme Court considered the relevant statutory factors, giving particular emphasis to the disparity between the parties’ incomes, plaintiff’s age, her lack of assets, and defendant’s dissipation of assets. The defendant earned $55,000 per year, and his income was likely to increase before he retired. The plaintiff received only $22,000 per year from her employment and had little prospect of any significant increase before she retired, given that she was 57 years of age at the time of trial and had limited earning capacity due to her arthritis and severe hearing loss. The record also supported Supreme Court’s finding that plaintiff’s income from her pension and Social Security after retirement would be less than her current earnings, which were already insufficient to meet her modest monthly expenses. Those factors all militated in favor of an award of permanent maintenance, and the record showed that the lower court appropriately balanced plaintiff’s needs with defendant’s ability to pay.
Likewise, in Cameron v. Cameron, 51 A.D.3d 1165 (3rd Dept. 2008), inasmuch as the record reflected that Supreme Court gave appropriate consideration to the pertinent factors set forth in Domestic Relations Law §236(B)(6)(a), the appellate court rejected plaintiff’s argument that the court abused its discretion in awarding defendant non-durational maintenance.
In Kaplan v. Kaplan, 21 A.D.3d 993 (2nd Dept. 2005), the mother was awarded maintenance in the sum of $7,500 per month for 5 years. Contrary to the father’s contention, the maintenance award was a proper exercise of the trial court’s discretion, taking into consideration the relevant factors, including the parties’ pre-separation standard of living, the separate property retained by each party and their respective net equitable distributive awards of marital property, the mother’s absence from the work force as a certified social worker for most of the period following the birth of the parties’ special needs child, the mother’s continued role as the primary caretaker of a special needs child, the father’s significantly higher earning capacity as a successful partner in a radiology practice, and the short duration of the parties’ marriage.
In Saylor v. Saylor, 32 A.D.3d 1358 (4th Dept. 2006), the record established that the parties were married for 30 years, that the defendant was the primary breadwinner throughout the marriage, that the plaintiff stayed at home with the children or worked part-time for most of the marriage, thereby delaying her career prospects, and that there was a large disparity in the incomes of the parties. The Fourth Department upheld the lower court’s maintenance award on appeal, determining that the Supreme Court properly set forth the factors it considered in determining the amount and duration of the maintenance award.
Thus, each divorce case where maintenance is sought needs to be carefully evaluated on its merits to establish whether maintenance would be appropriate under the pertinent factors set forth in Domestic Relations Law §236(B)(6)(a).

Temporary Maintenance and Prenuptial Agreements

While a pre-nuptial agreement might restrict or waive a spouse’s right to maintenance and equitable distribution, it may not bar temporary relief, including temporary maintenance, interim counsel fees, and a temporary injunction against the disposing of marital property. Solomon v. Solomon, 224 A.D.2d 331 (1st Dept. 1996). In cases where the parties’ pre-nuptial agreement specifically provides that no maintenance will be awarded pendent lite, however, courts have held that no temporary maintenance should be awarded. See, e.g., Arzin v. Covello, 175 Misc.2d 453 (Sup. Ct., New York County 1998).

In Forsberg v. Forsberg, 219 A.D.2d 615 (2d Dept. 1995), the Second Department upheld the validity of the parties’ pre-nuptial agreement. Nevertheless, the appellate court found that Supreme Court did not improvidently exercise its discretion in awarding the wife $200.00 per week in temporary maintenance. The Second Department noted that, “Generally, the remedy for any seeming inequity in the award of temporary maintenance is a speedy trial at which the rights of the parties may be fully determined.” Id. at 617.

Thus, any pre-nuptial agreements must be carefully drafted to specifically prohibit any claims for temporary maintenance.

Family Court Lacks Power to Modify Maintenance Provision in Separation Agreement

In a recent decision, Johna M.S. v. Russell E.S., the Court of Appeals held that the Family Court lacks power to modify maintenance provisions contained in the parties’ separation agreement. The separation agreement that the wife and the husband both signed, explicitly stated that the wife is “completely disabled” and will be in need of maintenance “for the remainder of her life”. The agreement provided for current maintenance payments of $100.00 per week payable to the wife and recited that this being only a determination of her “present” need and his “present” economic circumstances. It further stated that the wife could if need be seek a “modification” of those sums in a “de novo” proceeding in a court of “appropriate jurisdiction”. A divided Court of Appeals held that the Family Court is not such an “appropriate” court and that in respect of spousal (as opposed to child) maintenance, family court lacks subject matter jurisdiction of a “modification”.

The Court pointed out that there was no risk that the wife would become a public charge. According to the Court of Appeals, the danger of a spouse becoming a public charge is the only circumstance in which, under Family Court Act § 463, the Family Court can modify a separation agreement when the matrimonial action has not been brought as of yet.

A key factor in Johna M.S. was that Family Court lacks “equity” jurisdiction. As Judge Smith points out in his dissent, the prior cases held that Family Court’s attempt to “modify” such a separation agreement amounts to a kind of “reformation or rescission”, which are equitable remedies: they seek to alter the parties’ agreement and there was no effort by the wife to do that here. On the contrary, the agreement itself contemplated modification, wholly negating the “equity” analogy. As a result, the disabled wife’s only choice is to either accept maintenance of $100.00 per week as permanent, or to sue in supreme court for a divorce or separation, where she will be able to seek a greater amount of maintenance.