NEW YORK STATE UNIFIED COURT SYSTEM
2015 NEW JUDGES' SEMINAR
JANUARY 7, 2015 10:45 A.M. - 1:00 P.M.
NEW YORK STATE JUDICIAL INSTITUTE
WHITE PLAINS, NEW YORK
APPLICATIONS FOR TEMPORARY AND FINAL RELIEF IN MATRIMONIAL ACTIONS: MAINTENANCE, EQUITABLE DISTRIBUTION, CHILD SUPPORT AND COUNSEL FEES
Faculty: Hon. Matthew Cooper, J.S.C. (Sup. Ct., NY Co.)
Hon. Richard Dollinger, J.S.C. (Sup. Ct., Monroe Co.)
Kathleen Donelli, Esq., McCarthy Fingar LLP, White Plains, NY
John Grimes, Esq., Grimes & Zimet, Chappaqua, NY
10:45am - 10:55am Introduction
10:55am - 11:30am Hon. Matthew Cooper
11:30am - 11:50am John Grimes, Esq. 19-34 Interim Counsel Fees
11:50am - 12:35pm Hon. Richard Dollinger / Kathleen Donelli, Esq. Equitable Distribution and Post Divorce Maintenance 35
Recent Decisions, Developing Trends and New Legislation, 1-64
by Bruce J. Wagner
12:35pm - 1:00pm Questions & Answers
Vincent F. Stempel, Esq.
John Biondo, Esq.
1205 Franklin Avenue
Garden City, New York 11530
TEMPORARY MAINTENANCE AWARDS
I. STATUTORY AUTHORITY:
The statutory authority for an award of pendente lite maintenance in a matrimonial action is found in Domestic Relations Law §236(B)(5-a).
II PENDENTE LITE MAINTENANCE:
Pendente lite awards should be an accommodation between the reasonable needs of the moving spouse and the financial ability of the other spouse with due regard for the pre-separation standard of living prior to commencement of divorce action. (Fini v. Fini, 107 A.D.3d 758, 966 N.Y.S.2d 689; DRL §236(B)(5-a)(g)).
1. Any perceived inequities can best be remedied by a speedy trial. (McMahon v. McMahon, 94 A.D.3d 958, 942 N.Y.S.2d 588).
A motion for pendente lite maintenance shall be made at or before the preliminary conference, if practicable. (22 NYCRR 202.16(k)(1)).
1. A preliminary conference shall be ordered by the Court to be held within 45 days after the action has been assigned to a Judge. (22 NYCRR 202.16(k)(1)).
(a) To draw an inference favorable to the adverse party with respect to any disputed fact or issue affected by such failure; or
(b) Deny the motion without prejudice to renew upon compliance with the provisions of this section. (22 NYCRR 202.16(k)(5)(i)(ii)).
III. SUBSTANTIVE ISSUES:
IV. TEMPORARY MAINTENANCE GUIDELINES:
A. For all actions commenced after October 12, 2010 Courts are required to apply a statutory mathematical formula in determining temporary maintenance awards. (DRL 236(B)(5-a)(c)). This statute creates a substantial presumptive entitlement, which was an effort to provide consistency and predictability in calculating temporary maintenance awards. (Assembly Memorandum in Support, 2010 McKinney's Session Laws or NY, at 1943).
In determining temporary maintenance pursuant to DRL§236(B)(5-a) the Court must first calculate income for purposes of support. In the first instance this is the parties' gross income as reflected in their most recent Federal returns, less mandatory deductions. (Khaira v. Khaira, 93 A.D.3d 194, 938 N.Y.S.2d 513).
The Court must make two alternate mathematical calculations, based on the payee's income and the payor's income up to an initial present cap of $524,000 "of the payor's annual income." (DRL§236(B)(5-a)(c)(1)(a-d, inclusive)).
30% of the payor's income minus 20% of the payee's income
40% of the combined income (payor payee) minus the payee's income.
The guideline amount of temporary maintenance shall be the lower amount of the two calculations. (DRL§236(B)(5-a)(c)(1)(d)).
In addition, where the income of the payor exceeds the income cap of $524,000, the Court is required to determine any additional guideline amount of temporary maintenance through consideration of the nineteen factors set forth in DRL §236(B)(5- a)(c)(2)(a).
In any decision made pursuant to this subparagraph, (i.e. payor income exceeds income cap) the Court shall set forth the factors it considered and the reasons for its decision. Such written order may not be waived by either party or counsel. (DRL§236(B)(5-a)(c)(2)(b)).
STEP 4: Adjustment of Award
The Court shall order the presumptive amount of temporary maintenance, unless the Court finds the presumptive award is unjust or inappropriate and adjusts the presumptive award of temporary maintenance based upon consideration of seventeen factors. (DRL§236(B)(5-a)(e)(i)(a-q inclusive)).
1. If the Court deviates from the presumptive award as unjust or inappropriate it must explain the reasons for its decision in writing. The Court should also proceed sequentially through the statutory procedure. (Goncalves v. Goncalves, 105 A.D.3d 901, 963 N.Y.S.2d 686). Such written order shall not be waived by either party or counsel. (DRL §236(B)(5-a)(e)(2)).
A. When a Court is unable to perform the calculation established by DRL §236(B)(5-a)(c) as a result of being presented with insufficient evidence to determine gross income, the Court shall order the temporary maintenance award based upon the needs of the payee or the standard of living of the parties prior to commencement of the divorce action, whichever is greater. (Davydova v. Sasonov, 109 A.D.3d 955, 972 N.Y.S.2d 293).
A. In the absence of a specific reference to the carrying charges for the marital residence, "...we consider it reasonable and logical to view the formula adopted by the new maintenance provision as covering all the spouse's basic living expenses, including housing costs as well as the costs of food and clothing and other usual expenses." (Khaira, Id. at 200); and Woodford v. Woodford, 100 A.D.3d 875, 955 N.Y.S.2d 355).
VII. TAXABLE CONSEQUENCES:
A. A temporary support award for pendente lite maintenance qualifies as a divorce or separation instrument pursuant to IRS regulations. Temporary alimony can be awarded as tax-free support, but must specifically designate it as such. (See, Lennox v. Weberman, supra. $38,000 per month tax-free maintenance; Lowe v. Lowe, 211 A.D.2d 595, 622 N.Y.2d 26).
B. The pendente lite award may be tax-deductible to the payor spouse and taxable as income to the recipient. (Gaetano D. v, Antoinette D., 37 Misc. 3d 990, 955 N.Y.S.2d 752).
Hon. Matthew Cooper, J.S.C.
II. Temporary Child Support
III. Temporary and Exclusive Occupancy of Marital Residence
IV. Temporary Custody
BASICS OF CHILD SUPPORT
Tom Gordon, Support Magistrate
Rensselaer County Family Court
I. SOURCES OF LAW
1. Prior years's charts are available by changing the year in the address (e.g., cssa_2012, cssa_2011, etc)
III. RESEARCH MATERIALS
A. Available at the Support Magistrates' Intranet Site http://inside-ucs.org/courts/magistrates/index.shtml
IV. WHO MAY RECEIVE SUPPORT? - FCA § 422
V. WHO MUST PAY CHILD SUPPORT?
1. Only if the child will become a public charge.
Rockland County Dept. of Social Services v. Alexander, 151 Misc.2d 447 (Fam. Ct., Rockland Cty. 1992); see also, Commissioner of Social Services of City of New York v. Nieves, 229 A.D.2d 325 (ls' Dept., 1996).
C. Adoptive parents
VI. COMMENCEMENT OF OBLIGATION FOR SUPPORT - FCA § 449;
DRL § 236B(7)(a)
VII. TERMINATION OF SUPPORT OBLIGATION
A. Child reaches 21
C. Death of child or supporting parent.
VIII. CHILD SUPPORT STANDARDS ACTS (CSSA)
A. Enacted in 1989, it creates a rebuttable presumption in favor of child support guidelines.
B. Agreements on consent must comply with CSSA.
All support agreements must state that the parties were advised of the provisions of the CSSA, the amount that the support obligation would presumptively have been under the CSSA and, to the extent that the obligation varies from the presumptive obligations, the factors on which the variance was determined. FCA § 413(1)(h) and DRL § 240(1)(h). Bill v. Bill 214 A.D.2d 84 (2" Dept., 1995); Sievers v. Estelle, 211 A.D.2d 173 (3rd Dept., 1995).
C. Income is the "gross (total) income as should have been or should be reported in the most recent federal income tax return." FCA § 413(1)(b)(5)(i), DRL § 240(1-b)(b)(5)(i).
D. All income is counted except:
a. The Appellate Divisions are split on whether a payor is entitled to a deduction from income if the agreement/order does not provide for an increase when maintenance terminates. The 1st and 4th Depts have held that the payor is not entitled to a reduction. Schmitt v. Schmitt, 107 A.D.3d 1529 (4th Dept., 2013); Jarrell v. Jarrell, 276 A.D.2d 353 (1" Dept., 2000). The 2nd and 3d Depts have held that the payor is entitled to the deduction. Nichols v. Nichols, 19 AD3d 775 (3" Dept., 2005); Lee v. Lee, 79 A.D.3d 473 (2" Dept.2005).
b. The Appellate Divisions are also split on whether maintenance is income to the payee-spouse. The l' and 3' Depts have held that the maintenance is income to the payee. Hughes v. Hughes, 79 A.D.3d 473 (ls' Dept., 2010); Nichols v. Nichols, 19 AD3d 775 (3' Dept., 2005). The 2" and 4'h Depts have held that the maintenance is not income unless and until it is included in the prior year's tax return. Lee v. Lee, 79 A.D.3d 473 (2" Dept.2005); Huber v Huber, 229 A.D.2d 904 (4th Sept., 1996).
E. Distributive awards, even when based upon enhanced earning capacity resulting from a professional license obtained during the marriage, are not deducted from the payor's income or added to the payee's income. Holterman v. Holterman, 3 N.Y.3d 1 (2004).
IX. CHILD SUPPORT COMPUTATION
A. Child Support Percentages - FCA § 413(1)(b)(3), DRL § 240(1-b)(b)(3)
B. Percentages mandatorily applied up to the first $136,000 of combined income. The amount of additional support for the income exceeding $136,000 is determined by applying the factors listed in section FCA § 413(1)(f) or DRL § 240(1-b)(0 (see D below for factors) and/or the child support percentage. FCA § 413(1)(c)(2&3); DRL § 240(1-b)(c)(2&3); See, Cassano v. Cassano, 85 N.Y.2d 649 (1995); Carr v. Carr, 309 A.D.2d 1001 (3d Dept., 2003).
C. Effective January 31, 2014, and every two years thereafter, the "$136,000 cap" will increase based upon changes in the Consumer Price Index. SSL § 111-i(2).
D. Percentages must be used unless the court finds that the order would be unjust or inappropriate. FCA § 413(1)(f), DRL § 240(1-b)(t). The court must review the following factors in making such a determination:
1. The financial resources of the custodial and non-custodial parent, and those of the child;
E. Split or Shared Custody
F. Poverty Level
1. Where the annual amount of the basic child support obligation would reduce the non-custodial parent's income below the Federal poverty level for a household of one, currently $11,490 annually (2013), the obligation is $25 per month. FCA § 413(1)(d), DRL § 240(1-b)(d).
2. The CSSA sets the presumptively minimum support order at $25 per month (FCA § 413(1)(g), DRL § 240(1-b)(g)), but the presumption can be rebutted by consideration of the variance factors (FCA § 413(1)(f), DRL § 240(1-b)(0). See, Broome Co. DSS v. Meaahan XX, 2013 WL 6182496 (3d Dept., 2013).
G. Self-Support Reserve
X. OTHER ITEMS OF SUPPORT
A. Health Insurance (FCA § 416; DRL § 240(1)(b)):
1. Parties are required to provide health insurance is "reasonable in cost and "reasonably accessible"
2. If health insurance is unavailable, the Court shall direct the custodial parent to maintain or apply for Child Health Plus or Medicaid.
B. Cash Medical Support (FCA § 413(1)(c)(5); DRL § 240(1-b)(c)(5))
C. Child care costs (FCA § 413(1)(c)(4); DRL § 240(1-b)(c)(4))
D. Optional costs:
XI. MODIFICATION OF THE SUPPORT OBLIGATION
A. Orders entered prior to October 13, 2010
1. Court-ordered support not resulting from a separation agreement or stipulation.
2. Support obligation resulting from a separation agreement or stipulation ("Boden/Brescia" standard)
a. A party seeking an upward modification of an order of support contained within a separation agreement or a stipulation has the burden of demonstrating
(1) that the agreement was not fair or equitable when it was entered into,
(2) that there has occurred an unanticipated and unreasonable change of circumstances, Boden v. Boden, 42 N.Y.2d 210 (1977); Cook v. Bornhorst, 230 A.D.2d 934 (3rd Dept., 1996.)
(3) that the basic needs of the child are not being adequately met. Brescia v. Fitts, 56 N.Y.2d 132 (1982).
(1) that the agreement was not fair or equitable when it was entered into;
(2) that there has occurred an unanticipated and unreasonable change of circumstances, or
(3) that the party has suffered a material adverse change in his financial circumstances subsequent to entering into the agreement. Feld v. Feld 214 A.D.2d 884 (3`d Dept., 1995); Allen v. Bowen, 149 A.D.2d 828 (3rd Dept., 1989).
B. Orders entered on or after October 13, 2010
a. e.g., if a support obligation for $100 per week was established in 2004 and by 2008 the cost of living has increased by 12%, the new obligation will be $112 per week.
XII. VIOLATION AND ENFORCEMENT
A. Court Remedies.
1. Money Judgment. FCA § 460; DRL § 244
2. Undertaking. FCA § 471; DRL § 243
3. Sequestration. FCA § 457; DRL § 243
4. Driver's, professional and recreational license suspension. FCA §§ 458-a, 458-b, 458c; DRL §§ 244-c, 244-b, 244-d
5. Commitment. FCA §§ 455; DRL § 245
a. Must show willful violation
(1) The petitioner has the burden to demonstrate that the respondent did not make court-ordered payments.
(2) The burden then shifts to the respondent to present "some competent, credible evidence of his inability to make the required payments." Powers v. Powers, 86 N.Y.2d 63 (1995).
b. Punishment of incarceration up to 6 months.
6. Counsel fees. FCA §§ 438(a); DRL § 237
a. Mandatory where willful violation is shown. FCA § 454(3); DRL § 237(c)
7. Probation. FCA § 456
B. Support Collection Unit
a. automatic for winnings of $600 or more
C. CPLR §5241
1. Arrears can be deducted from income without a money judgment up to 50% earned income if arrears less than 8 weeks old and debtor supporting spouse or children who are residing with him/her.
2. No limit on deduction for unearned income.
D. Office of Child Support Enforcement (OCSE) regulations at 18 NYCRR §347.9
1. SCU limited in §5241 executions.
2. The regulation sets a formula for determining the additional amount:
A. Net Worth Statement or Financial Disclosure Affidavit. FCA § 424-a; DRL § 236-B(4)
B. Because Family Court support proceedings are special proceedings, CPLR Article 31 discovery devices are available only by leave of the Court. CPLR § 408.
XIV. THE HEARING
XV. OBJECTIONS AND APPEALS
A. Order by a Support Magistrate
B. If the support order is made by a Supreme Court or Family Court Judge, appeals are to the Appellate Division.
John Grimes, Esq.
INTERIM COUNSEL FEES
I. Interim Counsel Fees
A. Statutory authority: Domestic Relations Law § 237(a).
B. Developmental Case Law
C. Revisionist Case Law
Clements v. Clements (Sup. Ct., Monroe Co., Dollinger, J)(U)(2014 WL 1419279)(2014 N.Y. Slip Op. 50581)(Apr. 10, 2014):
Counsel Fees - Factors-Refractory Conduct – Prolonging Litigation
Plaintiff wife spent substantial legal fees in preparation for trial and achieved final settlement upon opening statements, which almost exactly the same as what was offered six months before trial preparation began. Court faced with question of whether it should use its discretion to impose attorney fees against defendant husband on ground that he declined a reasonable settlement after in August 2013, which was similar to the one obtained upon commencement of trial. An attorney’s fee award pursuant to DRL § 237(a) is designed to prevent monied spouse from wearing down non-monied spouse on basis of financial strength. See, Rosenbaum v. Rosenbaum, 35 A.D.3d 713,714 (2nd Dept. 2008). Husband failed to rebut presumption that wife is less monied spouse, and thus, she is entitled to an award of an attorney’s fee. Court finds that husband’s failure to settle case in August 2013 resulted in substantial trial preparation costs for wife’s counsel, noting that 10 days before trial consumed $9,052 in fees. Given final settlement so similar to August 2013 offer, court concludes that it was a delay tactic on husband’s part and awards wife $22,500 in counsel fees.
Hon. Richard Dollinger, J.S.C. / Kathleen Donelli, Esq.
Sykes v. Sykes (Sup. Ct., New York Co., Cooper (J)(U)(2014 WL 1797010)(2014 N.Y. Slip Op. 50731)(May 02, 2014:
Maintenance – Generally-Primary Standard - Pre-Separation Standard of Living
Court considered relevant factors under DRL § 236B(6)(a) in determining maintenance award. Defendant wife alleges to receive pre-tax annual income of $609,500 and after-tax income of $299,000, through investment of her approximately $11,500,000 distributive award. Judge applies 6% pre-tax investment rate to defendant wife’s $11,500,000 in assets, resulting in pre-tax income of $690,000 per year following the decision in Hearst v. Hearst, 15 Misc.3d 1105(A) (Sup. Ct., N.Y. County 2007).
BURDEN OF TRACING
Hynowitz v. Hymowitz, -- A.D.3d --, --N.Y.S.2d – (Second Dept. 2014)(2014 WL 3445051)(Jul. 16, 2014):
Equitable Distribution of Husband's Business
Supreme Court improperly classified his plaintiff husband’s separate property as 1/3 interest in BSH holding company whose sole asset was a building located in lower Manhattan in which his family’s hardware store was located because BSH holding company was formed and building was acquired during marriage and plaintiff failed to trace funds used in his claim to his separate property. See, Judson v. Judson, 255 A.D.2d 656, 657; Steinberg v. Steinberg, 59 AD3d 702, 704; D’Angelo v. D’Angelo, 14 AD3d 476, 477; Farag v. Farag, 4 AD3d 502, 503; Capasso v. Capasso, 119 A.D.2d 268, 272. Supreme Court should have awarded defendant 25% share in plaintiff’s interests in BSH holding company. See, DRL § 236[B][d]; Price v. Price, 69 N.Y.2d 8, 18; Formica v. Formica, 101 AD3d 805, 806; Embury v. Embury, 49 AD3d 802, 804; Imhof v. Imhof, 259 A.D.2d 666, 667.
Overton v. Overton, -- A.D.3d --, -- N.Y.S.2d – (Second Dept. 2014)(2014 WL 2745146)(2014 N.Y. Slip Op. 04471)(June 18, 2014):
Titled spouse may seek to rebut presumption that commingled funds become separate property by tracing source of funds. See, Masella v. Masella, 67 AD3d 749, 750; Massimi v. Massimi, 35 AD3d 400, 402. Plaintiff established that $38,786 in her bank accounts was her separate property by providing documentation that she received such total amount as gifts and inheritances, which are considered separate property. See, DRL §236[B][d]. However, any money in account above $38,786 and being disputed must await trial for resolution.