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Kathleen Donelli, White Plains lawyer, Child Support and Maintenance

CHILD SUPPORT AND MAINTENANCE

Presented by:

Kathleen Donelli, Esq.

McCarthy, Fingar, Donovan, Drazen & Smith, L.L.P.

11 Martine Avenue

White Plains, New York 10606

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PACE JUSTICE CENTER

May 28, 2002

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I. JURISDICTION OF THE SUPREME AND FAMILY COURTS

1. Supreme Court, 111 Grove Street, White Plains, New York 10601

Jurisdiction over matrimonial actions which includes: actions for separation, annulment, or dissolution of marriage, divorce, declaration of the validity of a foreign judgment of divorce, and declaration of the validity or nullity of a marriage.

2. Family Court

Family Court has jurisdiction over child support and custody, except when prior "matrimonial actions" are pending.

Paternity actions and adoption proceedings in Westchester County must be brought in Family Court. A divorce action cannot be brought in Family Court.

3. Concurrent Jurisdiction

The Supreme and Family Court both have jurisdiction over issues of child support and maintenance. However, once a divorce action is commenced in Supreme Court, a subsequent action for custody or support cannot be brought in Family Court while the divorce action is pending in Supreme Court.

4. Referral Jurisdiction

If a divorce action is commenced in Supreme Court after the commencement of a support proceeding in Family Court, the Supreme Court has the power to remove the prior Family Court proceeding to Supreme Court.

The Supreme Court may refer an issue of support or may exercise its jurisdiction over support even where the Family Court has previously issued an Order. In such a situation, the Family Court's Order terminates when the Supreme Court makes an order of support, unless the Supreme Court decides to continue the Family Court's order.

5. Integrated Domestic Violence Court ("IDVC")

This court is designed to allow one judge (in Westchester, Hon. Daniel Angiolillo) to hear all the legal issues, criminal - family court - matrimonial, that may arise when domestic violence occurs.

When a criminal case is pending in the Domestic Violence part of Supreme Court, the justice presiding in that part will transfer designated Family Court cases to the IDVC. The integrated court will handle petitions for: custody, visitation, paternity and family offenses. The court will also assume jurisdiction over a petition for support; although the support issue will still be heard initially by a Hearing Examiner. Any objections to the Hearing Examiner's determination will be filed with and determined by the justice presiding in the IDVC.

While the Family Court petition is pending in the IDVC, all inquiries or other communications regarding the petition should be directed to the staff of the IDVC. The staff may be reached by mail addressed to: IDVC Courtroom 1402, Westchester County Courthouse, 111 Dr. Martin Luther King, Jr. Blvd., White Plains, New York 10601; or by telephone to the following individuals: Ms. Jacky Green, Senior Court Office Assistant at 995-6531; Ms. Selene Jackson, Senior Court Clerk at 995-7416; Mr. Robert Nicolais, Esq., Project Director at 995-6038 and Ms. Cherron Condon, Case Manager at 995-3292.

II. CHILD SUPPORT STANDARDS ACT ("CSSA")

Domestic Relations Law ("DRL") §240- 1-b (Attached as Exhibit A)

Family Court Act ("FCA") §413

A. Standard and Factors for Determining the Amount of Child Support

1. Basic Child Support

Under New York's Child Support Standards Act (CSSA), a court must always determine the basic child support obligation, even if the court ultimately deviates from this amount in formulating the final child support award. A court may deviate from this basic child support obligation only under extraordinary circumstances, as described in the statute.

Child Support percentages:

17% for one child

25% for two children

29% for three children

31% for four children

no less than 35% for five or more children.

In Cody III v. Evans-Cody, 435 N.Y.S.2d 1181 (2d Dep't 2001), the mother left her three children and husband to become a "wrangler" at a ranch in Arizona, spending part of her $130,000 inheritance (i.e., separate property) on a $19,000 Jeep and a $15,000 mortgage. The father earned $40,000 and the mother earned $21,455 per year. The Second Department increased the mother's child support obligation from $484.37 to $900 per month, reasoning that it is proper to consider her inheritance in computing child support.

2. Mandatory Add-Ons

§ Pro rata share of reasonable child care expenses while the custodial parent is working, attending school, job training. Summer camp should be specified in lieu of child care.

§ Pro rata share of reasonable health care expenses that are not covered by health insurance (i.e., "unreimbursed medical insurance").

3. Discretionary Add-Ons

§ Child care expenses while the custodial parent is looking for work.

§ Child's educational costs, such as private school or college tuition.

§ Child's educational enrichment costs, such as tutoring.

§ UNCLEAR: If Court can direct the non-custodial parent to pay child's extracurricular expenses, such as piano lessons, horseback-riding lessons

4. Deviations from the basic child support obligation

Factors to be considered to determine if the non-custodial parent's pro rata share of basic child support would be "unjust or inappropriate."

· Financial resources of both parents and the child

· Physical/emotional health of the child; any special needs or aptitudes

· Standard of living the child would have enjoyed had the household not dissolved

· Tax consequences to the parties

· Non-monetary contribution of the parents toward the care of the child

· Educational needs of either parent

· Substantial differences in gross incomes of the parents

· Needs of other children under the care of the non-custodial parent (but only if the financial resources of those children are less then the child requesting support)

· Extraordinary expenses of the non-custodial parent in making visitations, or expenses of non-custodial parent in extended visitations (but only if the extended visitations substantially reduce the custodial parent's expenses)

· Any other factor which the court deems relevant.

5. Health Insurance

6. Life Insurance

7. College Expenses

A court may, as part of an award of child support, require a non-custodial parent to contribute his share of the cost of a college education (see, DRL § 240 [1-b] [b] [2]; FCA § 413 [1] [c] [7]).

In the First, Third and Fourth Departments, the application of a credit for college expenses is discretionary and generally limited to the cost of room and board (see, Finkelstein v. Finkelstein, 268 A.D.2d 273, 275 [1st Dep't 2000]; Paro v. Paro, 215 A.D.2d 965, 966 [3d Dep't 1995]; Houck v. Houck, 246 A.D.2d 905, 906 [3d Dep't 1988]; Burns v. Burns, 233 A.D.2d 852, 853 [4th Dep't 1996]). On a case-by-case basis, where appropriate, trial courts in these departments may order a reduction in basic child support commensurate with the non-custodial parent's pro rata share of the costs of food and lodging at college.

However, in the Second Department, the rule is that the trial court is to give the non-custodial parent a credit against child support for any amounts he or she contributes toward college expenses when the child lives away from home while attending college. In Sheridan v. Sperber, 269 A.D.2d 432, 702 N.Y.S.2d 894 (2d Dep't 2000), the court left no room for doubt that the "college credit" is both mandatory and coextensive with the non-custodial parent's contribution to any college expenses, including tuition. See also, Jablonski v. Jablonski, 25 A.D.2d 692 [2000]; Justino v. Justino, 238 A.D.2d 549 [1997]; Vainchenker v. Vainchenker, 242 A.D.2d 620 [1997]).

The dollar-for-dollar mandatory credit for college expenses does not apply where there is an agreement between the parents that does not provide for the downward modification of child support if the non-custodial parent contributes to college expenses. Thus, the court in Maurer v. Erdheim, 738 N.Y.S.2d 885 (2d Dep't 2002) held that the non-custodial parent does not get a credit against child support for his contribution toward college expenses because the Stipulation of Settlement did not provide for it.

III. WHO IS REQUIRED TO PAY CHILD SUPPORT

In most instances, the non-custodial parent must pay child support pursuant to CSSA.

1. Sole and Joint Legal Custody

2. Joint Physical Custody:

In Baraby v. Baraby, the court explained how to calculate child support in equal shared custody situations. As indicated on page 827 of the case, the court held that:

where, as here, the parents' custodial arrangement splits the children's physical custody so that neither can be said to have physical custody of the children for a majority of the time, the parent having the greater pro rata share of the child support obligation, determined after application of the three-step statutory formula of the CSSA, should be identified as the "noncustodial" parent for the purpose of support regardless of the labels employed by the parties [citations omitted]. That parent must be directed to pay his or her pro rata share of the child support obligation to the other parent unless "statutory formula yields a result that is unjust or inappropriate" [citations omitted].

3. Split Custody

Courts may have determined each parent's basic child support obligation and subtracted the lower from the higher child support obligation.

IV. DURATION OF CHILD SUPPORT

1. Parents are required to support their child until the child has reached the age of 21, or has become emancipated.

2. Emancipation may include any event that indicates that the child is living separately and independently from a parent, or is self-supporting, e.g.:

a. Completion of four years of college

b. Child's marriage

c. Permanent residence away from he parents (excluding residence at school)

d. Child's enrollment in the armed forces of the United States

e. Child's full-time employment (excluding employment during vacation and summer periods).

V. ENFORCEMENT

1. Attorneys' Income Execution - CPLR § 5241

2. Income Deduction Order by Court - CPLR § 5242

3. Support Collection Unit (only when order is combined with child support) - FCA § 440(b)(1)

4. Suspension of driving privileges, state professional, occupational, business and recreation licenses - DRL § 244-a, 244-b, 244-d.

VI. MODIFICATION OF CHILD SUPPORT

1. For Child Support Pursuant to a Court Order or Divorce Judgment

The test is: Substantial Change in Circumstances

DRL §236 part B(9)(b), first sentence: recipient's inability to be self-supporting or a substantial change in circumstances

2. For Child Support Pursuant to a Separation Agreement or Stipulation of Settlement that Survives Divorce Judgment

The test is: Unanticipated and unreasonable change of circumstances. Clear and convincing evidence. Burden is on moving party:

DRL §236 part B(9)(B), Party seeking to modify child support incorporated into a divorce judgment must show an "unanticipated and unreasonable change in circumstances," and that the basic needs of the child are not being met. Boden v. Boden, 42 N.Y.2d 210, 397 N.Y.S.2d 701 (1977).

Need to show specific increase in the costs associated with basic necessities, such as food, clothing, shelter, medical and dental, as well as child's various school activities. Miller v. Davis, 176 A.D.2d 945, 575 N.Y.S.2d 681 (2d Dep't 1991); or that custodial parent's income in combination with non-custodial parent's child support are insufficient to meet children's needs. Demske v. Demske, 245 A.D.2d 1031, 666 N.Y.S.2d 65 (4th Dep't 1977).

Recent Cases Awarding An Upward Modification of Child Support.

Gravlin v. Ruppert, N.Y.L.J., 5/8/02, p. 19. Parents opted out of the CSSA because child was going to spend 35% of time with the father. The Court of Appeals declined to extend the Boden test (i.e., unforeseen change in circumstances, plus a concomitant showing of need, 42 N.Y.2d at 213) and held that the "complete breakdown in the visitation arrangement, which effectively extinguished [the father's] child support obligation, constituted an unanticipated change in circumstances that created the need for modification of the child support obligations." Consequently, the Court of Appeals directed the Family Court to apply the CSSA to determine the father's child support obligation.

Gottesman v. Gottesman, 290 A.D.2d 201, 735 N.Y.S.2d 113 (1st Dep't 2002). Rabbinical tribunal awarded wife $1,500 per month in child support where wife earned $28,000 and husband earned $250,000 per year. The appellate court reasoned that child support issues are arbitral but remain subject to judicial review and found that child support should be remanded to Supreme Court because the rabbinical tribunal did not properly consider the child's best interests and her needs in view of the parents' marital standard of living.

Downward Modification Denied

Father denied downward modification of child support where "credible evidence supported the Hearing Examiner's determination that the father was earning more money than he was reporting to the court, that he was able to make the required payments, and that he willfully failed to abide by his maintenance and child support obligations." Sand v. Sand, 736 N.Y.S.2d 102 (2d Dep't 2002).

VII. SPOUSAL SUPPORT / MAINTENANCE / ALIMONY

DRL § 236, Part B(6) (attached as Exhibit B)

FCA § 412, 416, 437

A. Standard and Factors for Determining the Amount and Duration of Maintenance

1. Amount: Case of Steinberg v. Steinberg, 18 N.Y.2d 492, 277 N.Y.S.2d 129 (1966)

2. Whether to Award Maintenance: Hartog v. Hartog, 85 N.Y.2d 36, 623 N.Y.S.2d 537

3. Reasonable Needs vs. Preseparation Standard of Living. Cassano v. Cassano, 111 A.D.2d 208 (Second Dep't 1985).

4. Statutory Factors.

DRL § 236, Part (B)(6)(a) sets out the statutory factors to be considered by a court in determining maintenance, and in determining the amount and duration of maintenance.

The Statutory Factors:

· Income and property of the parties

DiCaprio v. DiCaprio, 556 N.Y.S.2d 1011 (4th Dep't 1990)

· Duration of marriage and health of the parties

· Present and future earning capacities of the parties

· Whether the spouse could become self-supportive with the necessary training

Neumark v.Neumark, 120 A.D.2d 502 (Second Dep't 1986)

· Reduced capacity of earning for the spouse who started career late due to the marriage and child raising

· Where the children reside

· Tax implications

· Contributions of the party seeking maintenance to spouse's career and earning ability. Saxton v. Saxton, 564 N.Y.S.2d 216 (Third Dep't 1991)

· Wasteful dissipation of the marital property by either spouse ("economic fault")

· Any transfer or encumbrance made in contemplation of marriage without fair consideration

· Any other factor that the court deems just and proper.

5. Duration of Maintenance

Court's Discretion - DRL § 236(b)(1)(a) provides that maintenance may be awarded for a definite or indefinite period of time to meet the reasonable needs of a party to a matrimonial action.

Terminates upon death of either party or upon remarriage of recipient. DRL § 236, Part B, (6)(c).

In Mazzone v. Mazzone, 736 N.Y.S.2d 683 (2d Dep't 2001), the court upheld nondurational maintenance for disabled wife.

In Schenfeld v. Schenfeld, 289 A.D.2d 219, 734 N.Y.S.2d 465 (2d Dep't 2000), the court modified nondurational maintenance to wife so that it would cease when wife reaches 65 years.

6. Basis for Determination - DRL §236(B)(5)(g) (Exhibit B)

7. Marital Fault

8. Stipulation of Settlement

The parties' agreement must provide that the maintenance will terminate upon the happening of a certain event such as remarriage; if not, maintenance will continue. Slagsvol v. Schenck, 213 A.D.2d 537, 624 N.Y.S.2d 182 (2d Dep't 1995).

9. Enforcement

· Attorney's Income Execution - CPLR § 5241

· Income deduction Order by Court - CPLR § 5242

· Support Collection Unit (only when order is combined with child support) - FCA § 440(b)(1)

10. Modification of Maintenance

A. Maintenance Pursuant to A Court Order Or Divorce Judgment

Substantial change of circumstances or inability to be self-supporting. Streit v. Streit, 237 A.D.2d 662, 653 N.Y.S.2d 986 (3d Dep't 1997); Wight v. Wight, 232 A.D.2d 844, 648 N.Y.S.2d 799 (3d Dep't 1996); Cavalarro v. Cavalarro, 278 A.D.2d 812, 718 N.Y.S.2d 538 (4th Dep't 2000); Scheinkman §25.18.

B. Maintenance Pursuant to a Separation Agreement or Stipulation of Settlement That Survives Divorce Judgment

Extreme Hardship: DRL §236 Part B (9)(b), second sentence: extreme hardship. Schwalm v. Schwalm, 279 A.D.2d 516, 718 N.Y.S.2d 883 (2d Dep't 2001); Scheinkman §25.12.

VIII. COURT RULES

1. § 202.16 Matrimonial Actions (Exhibit C)

2. Net Worth Statement

3. Preliminary Conference:

· Mandatory Disclosure (Exhibit C)

· Stipulating As To:

Fault

Custody (Law Guardian, Forensic Expert)

Temporary Support

Neutral Accountants

Contact Me

If you think you may require the assistance of Kathleen Donelli in any matter, email (kdonelli@mccarthyfingar.com) or phone her (914-385-1010) with any question you may have.