Posts Tagged ‘modification’
Monday, April 6th, 2009
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.
Tags: agreement, attorney, child support, Child Support Standards Act, downward, Family Court, Family Law, judgment, lawyer, modification, new york, order, stipulation, Supreme Court
Posted in child support, child support enforcement, Child Support Standards Act, Domestic Relations Law, Failure to Pay Child Support, Family Court, Family Law, imputed income, modification, New York Law, procedure, Settlement Agreements, Stipulations, Supreme Court | No Comments »
Sunday, March 29th, 2009
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.
Tags: attorney, child support, downward, Family Court, Family Court Act, Family Law, lawyer, loss of employment, modification, new york, reduction, rochester
Posted in child support, child support enforcement, Child Support Standards Act, court orders, Domestic Relations Law, Failure to Pay Child Support, Family Court, Family Law, imputed income, modification, New York Law, procedure, Supreme Court | No Comments »
Saturday, February 28th, 2009
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.
Tags: alimony, attorney, change in circumstances, divorce, Domestic Relations Law, downward, Family Law, lawyer, maintenance, modification, New York Law, rochester
Posted in court orders, divorce, Domestic Relations Law, Family Law, maintenance, modification, New York Law, procedure, Settlement Agreements, Stipulations, Supreme Court, Uncategorized | No Comments »
Monday, December 29th, 2008
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.
Tags: child support, child support guidelines, Child Support Standards Act, cola, college expenses, Family Law, modification, new york, opt-out, Supreme Court
Posted in child support, child support enforcement, Child Support Standards Act, college expenses, court orders, divorce, drafting, Family Law, modification, New York Law, procedure, Settlement Agreements, Stipulations, Supreme Court | No Comments »
Wednesday, October 22nd, 2008
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.”
Tags: alimony, change in circumstances, cohabitation, divorce, Domestic Relations Law, Family Law, maintenance, modification, New York Law
Posted in divorce, Domestic Relations Law, drafting, Family Law, maintenance, modification, New York Law, procedure, Settlement Agreements, Stipulations, Supreme Court | No Comments »
Monday, October 13th, 2008
One of the most common post-divorce scenarios is that the custodial parent wishes to relocate, the other party objects to such proposed move and argues that such move may negatively impact on the other parent’s relationship with the child. Assuming that the parties’ Judgment of Divorce, or separation agreement, does not conclusively address this issue, the party seeking to relocate will typically need to seek the court’s permission to do so.
As laid out in the leading case of Tropea v. Tropea, 87 N.Y.2d 727 (1996), the issue is to be determined is whether the proposed relocation is in the best interest in the child. In doing so, the court is to consider the following criteria:
1. Each parent’s reason for either seeking or opposing the relocation;
2. The current state of the relationship between each parent and the child;
3. The impact that the relocation will have on the quality and of the child’s relationship
with the non-custodial parent;
4. The emotional, economic and educational effects that the move will have on the
child; and
5. The feasibility of maintaining the relationship between the child and non-custodial
parent.
The trial court must weigh all of the factors and determine not what would be best for the parents but, rather, what is in the best interests of the child.
In Noble v. Noble, 52 A.D.3d 490 (2nd Dept. 2008), the mother sought to relocate from relocation from Long Island to upstate NY. The court held that the proposed relocation was in children’s best interests since the proposed move would provide economic, emotional and educational benefits for the mother and parties’ children without precluding meaningful and regular contact between children and father.
In Mallory v. Jackson, 51 A.D.3d 1088 (3rd Dept. 2008), the parties consented to June 2006 order awarding joint legal custody with mother having primary physical residence of the children. In October 2006, mother sought permission to relocate with parties’ children to North Carolina. Mother moved to North Carolina while petition was pending, leaving children with father at maternal grandmother’s home in Schenectady County. Mother was required to demonstrate by preponderance of evidence that proposed relocation would be in children’s best interests. Mother alleged that father had failed to provide her financial support throughout their relationship, and she was moving to be near a relative who offered financial assistance. The Appellate Division held that mother, who had already relocated, failed to present evidence at hearing that her financial situation in North Carolina was significantly better than while living in New York. Mother’s remaining extended family continues to reside in New York. The proposed relocation to North Carolina would deprive child of meaningful contact with father and members of their extended family and mother failed to establish existence of compelling reason to justify relocation of children to North Carolina.
If the court does not find the proposed move to be in the best interests of the children, the parent who has the primary physical residence of the children usually has a choice between staying or losing that primary physical residence to the other parent.
Tags: custody, divorce, Domestic Relations Law, Family Law, modification, New York family law, relocation, Supreme Court, visitation
Posted in custody, divorce, Domestic Relations Law, Family Court, Family Law, modification, Supreme Court | No Comments »
Saturday, August 30th, 2008
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.
Tags: alimony, change in circumstances, divorce, Domestic Relations Law, Family Law, health condition, maintenance, modification, New York Law
Posted in court orders, divorce, Domestic Relations Law, Family Law, maintenance, modification, New York Law, Settlement Agreements, Stipulations, Supreme Court | No Comments »
Saturday, August 30th, 2008
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.
Tags: change in circumstances, child support, Family Court, Family Law, modification, New York Law, petition
Posted in child support, Family Court, Family Law, New York Law, procedure | No Comments »
Thursday, August 21st, 2008
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.
Tags: Family Court, jurisdiction, maintenance, modification, new york, separation agreement, settlement agreement, Supreme Court
Posted in Family Court, Family Law, jurisdiction, maintenance, New York Law, Settlement Agreements, Stipulations, Supreme Court | No Comments »
Sunday, July 27th, 2008
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.
Tags: child support, emancipation, Family Law, modification, new york, order, UIFSA
Posted in child support, court orders, emancipation, Family Law, New York Law, UIFSA | No Comments »
