How Far Back Can Child Support Be Recalculated?

Ordinarily, proceedings to modify child support or related expenses are retroactive to the date of filing of the new application or petition. However, proceedings that argue that the court order or settlement agreement didn’t comply with the relevant requirements of the Child Support Standards Act are treated differently. Where the court finds, sometimes many years later, that an order, or an agreement, is non-compliant, it has to recalculate child support and related obligations retroactive to the original date of the order or agreement. Non-compliance can happen for a variety of reasons such as an invalid opt-out provisions or a failure to include proper acknowledgment clause.

In Martelloni v. Martelloni, the Appellate Division, Second Department, held that the trial court erred in failing to grant wife’s motion for recalculation of unreimbursed medical and childcare costs retroactive to parties’ stipulation of settlement date of January 12, 2012. Parties’ stipulation of settlement survived but was not merged into divorce judgment.

In 2014 wife commenced plenary action to vacate and recalculate medical and childcare expenses retroactive to the date of stipulation. In 2015 court consolidated wife’s plenary action with another post judgment matrimonial proceeding and determined stipulation provision pertaining to unreimbursed medical was invalid as it deviated from CSSA without an acknowledgment, and dismissed wife’s plenary action due to consolidation. Wife then filed motion to compel husband to pay pro-rata share of unreimbursed medical and childcare, retroactive to 2012 stipulation date.

The Appellate Division held that the trial court improperly determined reimbursement of medical and childcare costs were retroactive only to the date of filing of the motion. It held that since wife properly commenced plenary action to vacate and recalculate stipulation provision which action was consolidated, court should have granted recalculation of arears owed retroactive to date of parties’ stipulation of January 2012.

This determination is likely to create an unexpected financial obligation for the now ex-husband. The amount of it is likely to be significant since it had merited an appeal. In my practice as a child support attorney, I see a surprisingly high number of orders and agreements that for one reason or another do not comply with the Child Support Standards Act. Under appropriate circumstances, those situations represent an opportunity to undo a bad agreement or wrong court decision.

Automatic Orders During Divorce Can Only Be Enforced Prior to the Entry of Judgment

WHAT ARE “AUTOMATIC ORDERS”?

When a divorce action is filed and defendant is served, among other documents that person is served with a ‘Notice of Automatic Orders.’ Those orders are designed to keep the status quo with respect to certain issues, without a judge having to act.

WHAT ISSUES DO THESE AUTOMATIC ORDERS COVER?

Automatic Orders prohibit the sale or transfer of real or personal property without the consent of the other party or an order of the court. This doesn’t apply to spending related to the normal course of business, usual household expenses, or reasonable attorney fees. Automatic Orders prohibit the sale or transfer of retirement accounts without the consent of your spouse or a court order. Automatic Orders prohibit further borrowing against any home equity loan, taking out new loans on any assets, or using credit cards for anything outside the normal course of business, usual household expenses, or reasonable attorney fees. Automatic Orders prohibit you from dropping your children or spouse from any medical insurance policy. You are also prohibited from dropping the policy altogether – health insurance must remain in effect. Automatic Orders prohibit changing the beneficiary of any life insurance policy and require that the parties keep all life, auto, homeowners, and renters insurance in place. The idea behind Automatic Orders is that everything stays the same during the divorce to avoid any sudden changes. If you do need to make big changes because of unusual circumstances, there are ways to go about it.

A RESTRAINING ORDER PREVENTS A PARTY IN A DIVORCE CASE FROM SELLING OR TRANSFERRING PROPERTY.

The reason behind a restraining order is that some spouses try to hide or sell off assets of the marriage. In New York, parties no longer need to apply directly to a judge for a restraining order, as the retraining order and other orders are now automatic. These “Automatic Orders” go into effect when a divorce case is filed in New York. There is no requirement that a Supreme Court Justice sign the Automatic Orders before they become effective. The automatic Orders are imposed on the plaintiff when the Summons is filed with the County Clerk’s office. The Automatic Orders are imposed on the defendant when the defendant is served with the Summons with Notice, and a Notice of the Automatic Orders.

WHAT HAPPENS IF THE AUTOMATIC ORDERS ARE VIOLATED?

In a recent case, decided by the Second Department of the Appellate Division, Spencer v. Spencer, the court held that the remedy of civil contempt of court for a violation of the Automatic Orders is no longer available once the divorce judgment is signed. Thus, any contempt proceeding must be completed before the divorce judgment is signed or there is no longer a remedy for the violation it is waived.

The facts in Spencer are straightforward. Following the entry of her November, 2015 divorce judgment, the wife discovered that while the divorce action was pending, her husband sold a warehouse in Brooklyn, without the knowledge or consent of the wife or the court, netting $300,000.00.

Pursuant to Court Rule 22 N.Y.C.R.R. §202.16-a, the automatic orders are binding upon a plaintiff upon commencement of the matrimonial action and upon a defendant upon service of the summons or summons and complaint (see Domestic Relations Law §236[B][2][b]). Automatic Orders seek to preserve the status quo while the action is pending, by prohibiting the transfer or encumbrance of real and personal property and retirement funds, the accumulation of unreasonable debt, and changes in beneficiaries on existing health and life insurance policies.

The wife, then, brought a motion to hold the husband in civil contempt (Judiciary Law §753). After a hearing, the trial court granted that motion and directed that unless the defendant purged the contempt by immediately paying $150,000.00 to the wife, the husband would be incarcerated every weekend for a period of six months. The husband appealed.

The Second Department reversed. In doing so, it stated the elements needed to be proven by clear and convincing evidence to support a finding of civil contempt are:

      • that a lawful order of the court, clearly expressing an unequivocal mandate, was in effect;
      • that the party against whom contempt is sought disobeyed the order;
      • that the party who disobeyed the order had knowledge of its terms; and
      • that the movant was prejudiced by the offending.

The husband argued that the automatic orders do not constitute “unequivocal mandates” of the court, but are merely administrative rules. The Second Department affirmed that part of trial court’s decision that the automatic orders could form the basis for a finding of contempt. The appellate court found the husband’s argument contrary to the express language of 22 N.Y.C.R.R. §202.16-a, as well as being against public policy.

However, the Second Department held that where a judgment of divorce has already been entered, the remedy of civil contempt is not available for a violation of the automatic orders.

In the context of a matrimonial action, the Court of Appeals has recognized that a final judgment of divorce settles the parties’ rights pertaining not only to those issues that were actually litigated, but also to those that could have been litigated.
The automatic orders are temporary and exist only “in full force and effect” during the pendency of the action until “terminated, modified or amended by further order of the court or upon written agreement between the parties” (22 NYCRR 202.16-a[b]). Upon entry of a judgment of divorce, the purpose of the automatic orders ends, and, when the life of the automatic orders thus expires, the statutory remedies for their enforcement fall at the same time.

In the context of a matrimonial action, the Court of Appeals has recognized that a final judgment of divorce settles the parties’ rights pertaining not only to those issues that were actually litigated, but also to those that could have been litigated. The automatic orders are temporary and exist only “in full force and effect” during the pendency of the action until “terminated, modified or amended by further order of the court or upon written agreement between the parties” (22 NYCRR 202.16-a[b]). Upon entry of a judgment of divorce, the purpose of the automatic orders ends, and, when the life of the automatic orders thus expires, the statutory remedies for their enforcement fall at the same time.

Public policy concerns recognizing the finality of judgments are additional reasons to find that, after a judgment of divorce is entered, a party is not entitled to pursue a motion for contempt of court for a late-discovered violation of the automatic orders even though such violation occurred during the pendency of the divorce action. Preventing vexatious litigation and promoting judicial economy, as well as the goal of avoiding inconsistent rulings where a judgment of divorce might actually conflict with the finding in a hearing on a violation of the automatic orders, also dictate the conclusion that a remedy of civil contempt is not available for a violation of the automatic orders once a judgment of divorce is entered.

While reversing the trial court, the Second Department noted that the unavailability of civil contempt as a remedy to enforce the terms of the automatic orders after the entry of the judgment of divorce did not render the wife without available remedies. It listed a variety of approaches, including a vacatur of the judgment of divorce based on newly discovered evidence, a civil contempt motion for a violation of the judgment of divorce, a proceeding to enforce the terms of the judgment of divorce or to obtain an order directing the payment of 50% of the value of the property which was awarded to the plaintiff in the judgment of divorce, or amendment of the judgment of divorce are all remedies that the wife could have sought.

Thus, it is absolutely critical to enforce a party’s rights for violation of the Automatic Orders as soon as the violation is discovered by filing a contempt motion unless circumstances mandate a different approach.

Discipline For Children Who Refuse to Engage in Court-Ordered Visitation

One of the most difficult problems facing non-residential parents is a situation where a child refuses to engage in court-ordered visitation. If a child is above a certain age, a child can be constructively emancipated. Another option that the court has is to suspend or terminate residential parent’s right to child support. However, that does not work in every situation. Dealing with such refusal and attempting to resolve this problem, in Matthew A. v. Jennifer A., 2020 N.Y. Slip. Op. 51071(U), Justice Dollinger of the Monroe County Supreme Court imposed disciplinary measures on the children to protect the parental choice of best interests for the children, and also imposed significant sanctions on the parent who violated visitation orders.

In Matthew A., the father sought a contempt finding against the mother for refusing to follow increased visitation provisions that were in place for the parties’ three children, ages 14, 12 and 10. The mother argued that she was unable to force the children to spend additional time with the father and that the children should visit the father upon a schedule determined solely by their wishes. In effect, the mother’s argument would give the children veto power over the father’s access to them. Justice Dollinger wrote about the children’s position that the children “offer no justification, however; they just do not want to have someone dictate their schedule. They want to make that choice themselves and, as they say it, live their own lives. They tell the Court that they can decide their own best interests”.

In the court’s view, this argument was contrary to the most basic of parental rights, the right to make decisions in the best interests of the children. The court stated that “giving parents adequate access to their children is at the very heart of the children’s “best interests”.”

Since the mother’s actions in violating provisions of the court orders related to visitation subjected her to a finding of contempt, the court, utilizing its contempt powers, imposed significant restrictions on the children that the mother would have to enforce. The restrictions included the children’s prohibition of participation in extracurricular activities, prohibition of visits with friends and family members, and any other activities outside of the home.

The children’s attorney objected to those restrictions. In response, the court wrote that:

AFC, in a post-submission email to this Court, argues that the children are being held hostage and the restrictions are substantially impacting their lives, their development, their time with their mother’s family and other pursuits. The restrictions designed by this Court are intended to do exactly that but, the notion that the sons are hostages or are being restrained in their daily activities against their will is misplaced. They have the key to relieve the restrictions: take time to visit with their father as their mother and father agreed the father should have. Once that occurs, the restraints imposed by this Court disappear. The AFC also argues that the father, in seeking this Court order, has unreasonably punished his children and that this Court should take his conduct, in seeking to restrict their busy social lives, as evidence of some malevolent inclination on his part. In this Court’s view, that argument is a serial assault on parenthood: a parent, seeking a child’s compliance with a reasonable parental request, usually invokes increasingly severe penalties to obtain a child’s compliance with any reasonable rule. When a child refuses to, say, eat their vegetables or go to their grandparent’s anniversary celebration, the discipline track starts with “go to your room,” advances to “no television,” then, “give me your phone and your ‘screen,'” followed by ” sorry, “no ride to practice or ride to your friend’s house,” eventually reaching, “sorry, I won’t sign the permission slip to play soccer.” These disciplinary steps are not novel but, instead universal.

In view of contempt findings based on the mother’s behavior, the court offered the mother a way to purge contempt by requiring the mother to finance family reunification therapy for the children and their father with a recognized therapist, with the mother financing the first $7,500.00 in therapy costs, and the mother paying an award of attorneys fees and costs to the father for the fees and costs to bring this motion

Additionally, as a result of the children’s refusal to visit, the father asked that his child support obligation be eliminated or reduced. The court agreed, holding that “the father’s child support obligation is suspended until the three sons participate in the visitation plan detailed by this Court.”

Given the mother’s conduct of involving the children in this litigation and other violations of the court’s orders, I am not surprised by the decision. It will be interesting to see if the order is going to be appealed and if it is, if it will be affirmed.