In a case of first impression, defendant, the father of twin daughters, was convicted by a jury in the Federal Court for the Southern District of New York of two counts of willful failure to pay a court ordered child support obligation in violation of 18 USC §228(a). One of the questions of first impression for the Second Circuit Court of Appeals was “whether violation of a single child support order which covers two children gives rise to one or two violations of 18 USC §228.” Conviction is affirmed on one count, vacated on the second, and the matter remanded for resentencing. When Congress leaves a statute ambiguous as to the proper unit of prosecution, “the ambiguity should be resolved in favor of lenity.” Here, because the statute does not clearly distinguish between a “support obligation” and a “court order,” defendant’s willful failure to comply with the underlying order of support for his two daughters justifies the prosecution of only one count for willfully violating an order of support, rather than two counts for failing to pay support for his twin daughters. USA v. Kerley. Decided 9/25/08.
A person’s right to the return of wedding presents given in contemplation of a marriage that fails to materialize is governed by §80-b of the Civil Rights Law, which permits the recovery of such gifts. The statute provides that:
Nothing in this article contained shall be construed to bar a right of action for the recovery of a chattel, the return of money or securities, or the value thereof at the time of such transfer, or the rescission of a deed to real property when the sole consideration for the transfer of the chattel, money or securities or real property was a contemplated marriage which has not occurred, and the court may, if in its discretion justice so requires, (1) award the defendant a lien upon the chattel, securities or real property for monies expended in connection therewith or improvements made thereto, (2) deny judgment for the recovery of the chattel or securities or for rescission of the deed and award money damages in lieu thereof.
This statute permits recovery when the sole consideration for the transfer of the chattel, money or securities or real property was a contemplated marriage that has not occurred. It has been held that there is a strong presumption that any gifts made during the engagement period are given solely in consideration of marriage. This presumption is rebuttable, but clear and convincing proof is necessary to overcome it.
In Gaden v. Gaden, 29 N.Y.2d 80 (1971), the Court of Appeals held that fault was irrelevant under Civil Rights Law §80-b, which contemplates situations where one party has directly transferred property to another, as well as situations where the transfer was made by a third party to both of the parties. The Court held that just as the question of fault or guilt has become largely irrelevant to modern divorce proceedings, so should it also be deemed irrelevant to the breaking of the engagement. The purpose of §80-b was to return the parties to the position they were in prior to their becoming engaged, without without rewarding or punishing either party for the fact that the marriage failed to materialize.
Thus, if an engagement does not result in a marriage, the ring or any other gifts given in contemplation of the marriage, should be returned to the party who made the gift. Alternatively, one should be prepared to fight a law suit.
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.
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.
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.
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.
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.
In order for the parent having primary physical residence of the child to seek upward modification of an existing child support obligation, a Family Court petition must present factual allegations representing a substantial change in circumstances. If such allegations are not presented, such petition fails to state a cause of action and is subject to dismissal. In meeting such burden, the party must establish the “’specific increases in the costs associated with the child’s basic necessities’ … ‘as well as the expenses associated with the child’s varied interests and school activities’ and cannot ‘[rely] on generalized claims of increases due to the child’s maturity or inflation’”. Cadwell v. Cadwell, 294 A.D.2d 434 (2d Dept. 2002); Gentry v. Littlewood, 269 A.D.2d 846 (4th Dept. 2000); Greenway v. Greenway, 262 A.D.2d 855 (3rd Dept. 1999).
Therefore, a petition should contain specific allegations addressing the change in the child’s needs and explaining how the parent with whom the child resides is unable to meet them.
It is not infrequent for the non-custodial parent to claim an annual income far less than he/she actually earns. In those situations, the courts can impute additional income to the party paying child support. As held by the Appellate Division, Second Department, in Strella v. Ferro, the court “need not rely upon the party’s own account of his or her finances, but may impute income based upon the party’s past income or demonstrated earning potential.” The imputed income can be established in several different ways.
One way to establish that a party’s actual income is higher than his/her reported income is to demonstrate how his/her reported lifestyle could not be supported by the reported income.
In Strella, the father claimed that he had been unemployed and only recently begun to earn $500 per week despite having recently earned as much as $101,000 per year. The Court imputed an income of $96,000 to the father. In doing so, the Appellate Court noted that:
Here, the father’s claimed annual household expenses were approximately double his claimed annual income in 2004 and 2005. Additionally, his financial data did not indicate that he used money from his savings or that he incurred greater debt to pay the remaining amount of his annual expenses not covered by his average annual income. During the relevant period, he did not liquidate any of his investments, he had no outstanding balance on his home equity line of credit, and his credit card statements showed no unpaid balances of a size and nature to correspond to his household expenses.
In Barnett v Ruotolo, the Appellate Division, Second Department, held that in exercising the discretion to impute income to a party, a Support Magistrate is required to provide a clear record of the source from which the income is imputed and the reasons for such imputation. In that case, the father did not testify and chose to rely on the financial documentation he had submitted. The father’s financial documentation indicated that his monthly income was only approximately one-third of his stated monthly expenses, and no evidence was submitted to show that these monthly expenses were not being paid in a timely manner. The Appellate Division held that lower court properly exercised its discretion in imputing income based upon the father’s self-reported financial affidavit for the purpose of calculating his child support obligation.
If the party’s expenses exceed his/her reported income, and there is no obvious diminution of the party’s assets, then the reported income is likely to be under-reported. Under those circumstances, the court should look beyond the filed tax return to calculate the appropriate child support amount.
The court can also impute income by averaging what was reported on most recent individual tax returns. In Y.W., v. T-T.J., the Appellate Division, First Department, reversed a child support order of $3,288 per month and remanded the case back for recalculation of the basic child support obligation. The Appellate Division held that since each party claimed that the income as reflected on the other’s tax return was not accurate, and the parties were unable to produce sufficient evidence to otherwise convince the support magistrate about their respective incomes, the magistrate properly decided to impute income to the parties by averaging what was reported on their most recent (2004 and 2005) individual tax returns.
In a recent decision, Spencer v. Spencer, the New York Court of Appeals has finally clarified issues related to application of the Uniform Interstate Family Support Act (“UIFSA”).
Prior to Spencer, in situations where a party had a child support order from a state where the age of emancipation was less than 21, the child support order expired due to the age of the child, and if New York courts had jurisdiction over the party, the custodial parent could bring a new child support petition in New York. Since the petition was treated as a new filing, and not a modification of the out-of-state order, the New York courts then could order child support to continue until the age of 21. This was highly inequitable to parties who had child support orders from the states where the age of emancipation was 18, such as Ohio, or 19, such as California.
Spencer was decided under the following facts. The parties in dispute were married and had several children while living in Connecticut. Following divorce, the mother moved to New York while the father continued to reside in Connecticut. When the eldest son turned 18, the Connecticut support order expired. In 2004, the alimony obligation also expired and the father, as the court noted, “began working three days a week as a consultant.” The mother brought a new child support petition in New York. The New York Family Court issued a new order in 2005 directing payment of child support lasting until age 21.
The Court of Appeals held that the New York order was a modification of the Connecticut support order under the one-order policy of the UIFSA. The Court of Appeals stated that the New York Family Court lacked subject matter jurisdiction to modify an out-of-state order, and child support terminated pursuant to the terms of the initial order. As a result of the decision, prior orders entered under similar circumstances should be vacated. Unfortunately, the Court of Appeals did not address whether recoupment of the child support paid under a new New York order is available to the parent who was paying child support.