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Applications for Temporary and Final Relief in Matrimonial Actions: Maintenance, Equitable Distribution, Child Support and Counsel Fees

NEW YORK STATE UNIFIED COURT SYSTEM

2015 NEW JUDGES' SEMINAR

MATRIMONIAL TRACK

 

 

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

 

 

TIMED AGENDA

                                                                                                                                                Page

10:45am - 10:55am     Introduction

 

10:55am - 11:30am     Hon. Matthew Cooper

  • Temporary Maintenance Award, by Vincent F. Stempel, Esq.       2-6 
  • Temporary Child Support                                                                7 
  • Temporary and Exclusive Occupancy of the Marital Residence     
  • Temporary Custody
  • Basics of Child Support, by Tom Gordon, Support Magistrate       8 

 

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

Suite 280

Garden City, New York  11530

vstempel@yahoo.com

 

 

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:

  1. A.                STANDARD:

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).

 

  1. B.                 FORM OF MOTION:

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)).

  1. A Request for Judicial Intervention shall be filed with the Court by plaintiff no later than 45 days from the date of service of the Summons and Complaint or Summons with Notice and with notice upon the Defendant, unless both parties file a Notice of No Necessity. (22 NYCRR 202.16(d)).
  2. No motion for alimony or maintenance shall be heard unless the moving papers include a Statement of Net Worth. (22 NYCRR 202.16(k)(2)).
  3. Failure to submit a Statement of Net Worth shall be good cause, in the discretion of the Judge, to either:

(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:

  1. The recurring problems are the conflicting self-serving Affidavits as to the amount of the payor spouse's disposable income available to pay support. "Realistically, it cannot be overlooked that the designation of the precise amount of the husband's 'draw' (income) from the business may well be related to the pendency of the matrimonial action . . ." (Sayer v. Sayer, 130 A.D.2d 407, 515 N.Y.S.2d 444, 447); "It is apparent that the parties' lifestyle and expenses set forth in their net worth statement exceed the income declared in their tax returns. (Gaetano D. v. Antoinette D., 37 Misc.3d 990, 955 N.Y.S.2d 752).
  2. A Court is not bound by a party's account of his or her finances, but may impute income based upon the parties past income or demonstrated earning potential (Lennox v. Weberman, 109 A.D.3d 703, 974 N.Y.S.2d 3; citing Hickland v. Hickland, 39 N.Y.2d 1, 382 N.Y.S.2d 475, 346 N.E.2d 243 (1976) cert. denied 429 U.S. 941).
  3. C.                                  Income Defined:        Income shall mean "Income as defined in the CSSA...", which, in essence, means "gross (total) income" as was or should have been reported in the most recent Federal income tax return. (DR14240 (1-b)(5)(i)). 

 

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).

 

STEP I

            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).

 

STEP 2

            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)).

            Calculation A:

            30% of the payor's income minus 20% of the payee's income

then

            Calculation B:

            40% of the combined income (payor payee) minus the payee's income.

 

PRESUMPTIVE AMOUNT:

            The guideline amount of temporary maintenance shall be the lower amount of the two calculations. (DRL§236(B)(5-a)(c)(1)(d)).

 

STEP 3

            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).

 


 

NOTE:

            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)).

 

  1. V.                                            INSUFFICIENT EVIDENCE OF INCOME

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).

 

  1. VI.                                       CARRYING CHARGES AND RELATED EXPENSES:

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).

  1. Where parties continued to reside together, and the husband was paying the carrying charges on the marital residence, one-half of those costs were allocated to the husband and one-half allocated to the wife who made the motion for temporary maintenance. (Francis v. Francis, 111 A.D.3d 454, 975 N.Y.S.2d 13).
  2. Court rejects the husband's contention that he is entitled to an award of the presumptively correct pendente lite maintenance under DRL §236(B)(5-a) in addition to an Order directing the wife to continue to pay his daily living expenses, including housing costs and medical insurance. The sums paid by the wife for rent and utilities related to the marital residence where both parties reside and the sums paid by the wife for the parties' daily living expenses, including health insurance premiums and personal expenses such as cellular telephone expenses for the parties should be deducted from the presumptively correct pendente lite award. The Court finds 50% of those monthly costs shall be considered as pendente lite maintenance benefitting the husband and, as such, deductible from the wife's pendente lite maintenance obligation. (H.G. v. N.K., 40 Misc.3d 1242(A), 2013 WL 5218056 (N.Y. Sup., Justice Sunshine, September 9, 2013)).

 

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

  1. Converse of temporary maintenance: guidelines apply only to final award of child support.
  2. Statutory authority for final awards: DRL § 240(1-b) (Child Support Standards Act).
  3. C.                                    Readick v. Readick, 80 AD3d 512 (P' Dept 2011) ("While a court may, in its discretion, apply the CSSA standards and guidelines, it is not required to do so.") 
  4. Methods for resolving.

 

III.   Temporary and Exclusive Occupancy of Marital Residence

  1. DRL § 234 (see also DRL § 236B(5)(1).
  2. Standard (Kenner v. Kenner, 13 AD3d 52 [1" Dept 2004]:
    1. Needed to protect the safety of persons or property; or
    2. Spouse has voluntarily established alternative residence and his or her return would cause domestic strife.
    3. Methods for resolving

 

IV.  Temporary Custody

  1. No award without full hearing.
  2. Carlin v. Carlin, 52 AD3d 559 (2" Dept 2008) ("it is error as a matter of law to make an order respecting custody, even in a pendente lite context, based on controverted allegations without having had the benefit of a full hearing") 
  3. Methods for Resolving

 


 

BASICS OF CHILD SUPPORT

Tom Gordon, Support Magistrate

Rensselaer County Family Court

tgordon@nycourts.gov \

January 2014

 

 

I.   SOURCES OF LAW

  1. Domestic Relations Law (DRL §§ 236 and 240)
  2. Family Court Act (FCA Arts. 4 and 5)

II.   FORMS

  1. Forms are Available from the NYS Office of Court Administration at http://nycourts.gov/forms/index.shtml

 

  1. The Child Support Standards Chart is available at https://www.newvorkchildsupport.com/dcse/pdfs/cssa 2013.pdf

 

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

  1. Either parent
  2. A caretaker on behalf of a child
  3. A child
  4. A Department of Social Services (DSS) on behalf of a child

V.  WHO MUST PAY CHILD SUPPORT?

  1. Either or both parents
  2. Step parents - FCA § 415

1.  Only if the child will become a public charge.

  1. Child Support guidelines do not apply.

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).

 

  1. Obligation ceases when child no longer in danger of becoming a public charge or when the marriage is terminated.

 

C.  Adoptive parents

VI.   COMMENCEMENT OF OBLIGATION FOR SUPPORT - FCA § 449;

        DRL § 236B(7)(a)

  1. Filing of support petition in Family Court
  2. Application for support as part of a matrimonial action
  3. Date child began receiving public assistance if petitioner is DSS

VII.   TERMINATION OF SUPPORT OBLIGATION

A.  Child reaches 21

B.  Emancipation

  1. Child supporting self. But full time work does not result in emancipation if the child still relies on one or both of the parents for significant economic support. Drumm v. Drumm, 88 A.D.3d 1110 (3`d Dept., 2011); Thomas B. v Lydia D., 69 A.D.3d 24 (1st Dept., 2009).

 

  1. Child marries

 

  1. Child abandons home without good cause (Constructive Emancipation). Roe v. Doe 29 N.Y.2d 188 (1971); Bogin v. Goodrich, 265 A.D.2d 779 (3`d Dept., 1999); Alice C. v. Bernard G.C., 193 A.D.2d 97 (2nd Dept., 1993). However a child who leaves the home with good cause is still entitled to support. Drumm v. Drumm, 88 A.D.3d 1110 (3rd Dept., 2011); Thomas B. v Lydia D., 69 A.D.3d 24 (1 S' Dept., 2009)

 

C. Death of child or supporting parent.

  1. Adoption of the child by another parent. DRL § 117.1(a). The effect of an adoption is to terminate the parent's support obligation without further court order. Betz v. Horr, 276 N.Y. 83 (1937); Harvey-Cook v. Neill, 118 A.D.2d 109 (2" Dept., 1986)

 

  1. Voluntary surrender of child born out of wedlock to a social services official. SSL § 398(6)(f).  But see Greene Co. Dept. of Social Services v. Ward, 8 N.Y.3d 1007 (2007), where the Court of Appeals held that this provision only applies to out-of-wedlock biological children. The court denied the application of an unwed adoptive mother who sought to terminate her support obligation when she surrendered the child to the County.

 

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).

 

  1. The Family Court Act does not prohibit "reliance upon partial information from a tax year not yet completed." Culhane v. Holt, 28 A.D.3d 251 (1S' Dept., 2006) (citations omitted).

 

  1. Where a party provides credible evidence that the overtime would not be available in the current tax year, it is proper to base an obligation on the base pay only. Taraskas v. Rizzuto, 38 A.D.3d 910 (2" Dept., 2007).

 

D. All income is counted except:

 

  1. Unreimbursed business expenses;

 

  1. Alimony or maintenance paid to a non-party spouse;

 

  1. Alimony or maintenance paid to the party spouse provided that the order provides for a specific adjustment of child support upon the termination of the alimony or maintenance obligation;

 

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).

 

  1. Child support paid to other children;

 

  1. Public Assistance;

 

  1. Supplemental Security Income (SSI);

 

  1. NYC or Yonkers tax;

 

  1. FICA (7.65% of earned income - This consists of 1.45% on all earned income for Medicare tax and 6.20% of earned income up to $106,800 in 2010 for Social Security).

 

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)

 

  1. One child - 17%
  2. Two children - 25%
  3. Three children - 29%
  4. Four children - 31%
  5. Five or more children - 35%
  6.  

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;

  1. The physical and emotional health of the child and his/her special needs and aptitudes;
  2. The standard of living the child would have enjoyed had the marriage or household not been dissolved.
  3. The tax consequences to the parties;
  4. Non-monetary contributions the parents will make toward the well-being of the child;
  5. The educational needs of either parent.
  6. A determination that the gross income of one parent is substantially less than that of the other;
  7. The needs of the children not subject to the order;
  8. Extraordinary expenses incurred in visitation;
  9. Any other factor the court deems relevant.

 

E.  Split or Shared Custody

 

  1. Split Custody - Where the physical custody of the children is split between the parties, each party is responsible for paying support to the other party for the child or children in that party's custody. The Court then determines the net support payment. Riseley v. Riseley 208 A.D.2d 132 (3rd Dept., 1995).

 

  1. Shared Custody

 

  1. In virtually every case, a determination of the primary custodian can be made. The CSSA requires a determination of the basic child support obligation in every case and, where appropriate, a deviation may be made to account for the shared custody. Bast v. Rossoff, 91 N.Y.2d 723 (1998)

 

  1. In cases where primary physical custody cannot be determined, the parent with the greater income is the non-custodial parent for CSSA purposes. Baraby v. Baraby, 250 A.D.2d 201 (3' Dept., 2000).

 

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

 

  1. Support order may not reduce non-custodial parent's income below the self-support reserve (135% of Federal poverty level for a household of one, currently $15,511.50 annually (2013)). FCA § 413(1)(d); DRL § 240(1-b)(d).

 

  1. However, where the basic child support obligation reduces the non-custodial parent's income below the self-support reserve but above the poverty level, the court may, "in its discretion", award or allocate health, education and child care expenses in addition to the basic payment.

 

  1. The self-support reserve is adjusted on March 1 of each year based upon the poverty levels published by the United States Department of Health and Human Services. FCA § 413(1)(b)(6), DRL § 240(1-b)(b)(6). The Federal poverty guidelines are available at http://aspe.hhs.gov/poverty/index.shtml.

 

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"

 

  1. Health insurance is presumed to be reasonable in cost if the cost of the benefits does not exceed 5% of the combined parental gross income.

 

  1. Health insurance is presumed to be reasonably accessible if the child lives within 30 miles or 30 minutes from the provided services.

 

  1. Both presumptions are rebuttable.

 

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))

 

  1. Cash medical support is the combination of health insurance premiums, whether publicly or privately provided, and unreimbursed health care expenses.

 

  1. Private health insurance or Child Health Plus premiums are prorated between the parties. If the custodial parent provides the health insurance, then the non-custodial parent's share is added to the basic child support obligation. If the non-custodial parent provides the health insurance, then the custodial parent's share is deducted from the basic child support obligation.

 

  1. If health insurance is unavailable and the child(ren) are receiving Medicaid, the non­custodial parent may be directed to pay a portion of the premium.

 

  1. Unreimbursed health-related expenses are apportioned pro-rata.

 

C.   Child care costs (FCA § 413(1)(c)(4); DRL § 240(1-b)(c)(4))

 

  1. Custodial parent working or receiving elementary, secondary or higher education, or vocational training which will lead to employment.

 

  1. Child care costs are apportioned pro rata.

 

D.   Optional costs:

 

  1. Child care when the custodial parent is seeking work and incurs expenses as a result. FCA § 413(1)(c)(6).

 

  1. Post-secondary, private, special, or enriched education where the court finds such education appropriate. FCA § 413(1)(c)(7).

 

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.

 

  1. A party requesting modification has the burden to show that a change of circumstances has occurred warranting a modification of the order of support in the child's best interests. Michaels v. Michaels, 56 N.Y.2d 924 (1982).

 

  1. Where the change of circumstances resulted from a party's own wrongful conduct, the request for a downward modification will be denied. Knights v. Knights, 71 N.Y.2d 865 (1988); Winn v. Baker, 2 A.D.3rd 1169 (3d Dept., 2003).

 

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).

(4)    

  1. An upward modification cannot be granted solely upon the increased needs of a child and/or the increased income of the noncustodial parent. Overbaugh v Schettini, 103 A.D.3d 972 (31' Dept. 2013); Friedman v. Friedman, 65 A.D.3d 1081 (2" Dept., 2009)

 

  1. A party seeking an downward 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, 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

 

  1. Grounds are spelled out on DRL § 236-B(9) and FCA § 451

 

  1. The party seeking a modification must show:

 

  1. that there has been a substantial change in circumstances since the last order of support;
  2. three years have passed since the order was entered, last modified or adjusted; or
  3. There has been a change in either party's gross income by 15% or more since the order was entered, last modified, or adjusted. In the event of a reduction in income, the reduction must be involuntary and must be accompanied by diligent attempts to find suitable employment.

 

  1. When making an order of support, the parties may choose to opt out of the three year and 15% bases for future modification "in a validly executed agreement or stipulation."

 

  1. If the order of support incorporates an unmerged agreement which was executed on or after October 13, 2010, there is no longer any higher burden of proof required to modify the obligation.

 

  1. If custodial parent was in receipt of public assistance when the order was made, a new order may be made without a showing of a change in circumstances. FCA § 571.3(b), Burke v. Palermo, 190 A.D.2d 1075 (4th Dept., 1993).

 

  1. COST OF LIVING ADJUSTMENT (COLA) - FCA § 413-a; DRL § 240-c

 

  1. Child must be on public assistance or in receipt of child support services from Support Collection Unit (SCU)

 

  1. Parties eligible if at least two years have passed and the cost of living has changed by at least 10%.

 

  1. Upon request of a party to an order eligible for a cost of living adjustment, the SCU computes the adjustment by adding the cost of living increase to the support obligation and notifies the parties.

 

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.

 

  1. If no objections are filed within 35 days, the new order takes effect automatically.

 

  1. If either party files a timely objection, the court shall hold a hearing and make a new order of support based upon application of the CSSA without any further showing of a change in circumstances.

 

  1. COLA will also serve to modify order contained within separation agreement or stipulation which otherwise would not be subject to modification. Tompkins Co. SCU v. Chamberlin, 99 N.Y.2d 328 (N.Y. 2003).

 

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

 

  1. Income execution
  2. Tax intercepts
  3. Lottery Winning intercept

a.  automatic for winnings of $600 or more

  1. Property Liens

 

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.

  1. 55% of earned income if arrears less than 8 weeks old and debtor not supporting other children residing with him/her.
  2. 60% of earned income if arrears at least 8 weeks old and debtor supporting children residing with him/her.
  3. 65% of earned income if arrears at least 8 weeks old and debtor not supporting other children 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.

  1. Cannot reduce income below self-support reserve;
  2. Payor must provide documentary proof to the local SCU to obtain relief.

2. The regulation sets a formula for determining the additional amount:

  1. The additional amount is 50% of the current support order;
  2. Where a current support obligation no longer exists, the additional amount is 150% of the amount of the most recent current support obligation, at the same frequency as the most recent support obligation;
  3. Where no current support obligation ever existed for current support but support arrears were established by the court, the additional amount shall be the amount of arrears divided by 12, payable in monthly installments.

 

XIII.   DISCOVERY

 

A.  Net Worth Statement or Financial Disclosure Affidavit. FCA § 424-a; DRL § 236-B(4)

 

  1. The parties must provide tax returns, W-2's, and pay stubs.
  2. Parties required to provide details about available health insurance plans.

 

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

 

  1. By Supreme Court Judge, Family Court Judge or Support Magistrate

 

  1. All rules of evidence apply. FCA § 439(d)

 

XV.   OBJECTIONS AND APPEALS

 

A. Order by a Support Magistrate

 

  1. If the hearing was held before a Support Magistrate, objections to the order must be served on the opposing party and filed within 30 days of the date the order was received in court or by personal service or, if the order was received by mail, within 35 days of the mailing of the order.
  2. The opposing party has 13 days to serve and file responding papers.
  3. Objections are reviewed by a Family Court Judge. FCA § 439(e). The Family Court Judge must issue an order on the objections with 15 days after the rebuttal is filed or the time to file a rebuttal has expired.
  4. A final order of the Family Court Judge on the objections is appealable to the Appellate Division pursuant to Article 11 of the Family Court Act. FCA § 439(e)

 

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).

  1. 2010 Amendment.
  2. "Rebuttable presumption;" "less monied spouse."

B.  Developmental Case Law

  1. O'Shea v. O'Shea, 93 NY2d 187 (1999) (It is incumbent on courts "to see to it that the matrimonial scales of justice are not unbalanced by the weight of the wealthier litigant's wallet.") 
  2. Silverman v. Silverman , 304 Ad2d 41 (1" Dept 2003) ("creating a more level playing field"). 
  3. Prichep v. Prichep, 52 AD3d 61 (2"d Dept 2008) ("significant disparity in the financial circumstances of the parties") 

 

C.  Revisionist Case Law

  1. Scott M v. Ilona M., 31 Misc 3d 353 (Sup Ct, Kings County 2011) ("The court cannot decide that just because one party 'earns more' than the other side he or she automatically becomes the “monied spouse.") 
  2. Sykes v. Sykes, — 993 NYS 2d 908 ("skin in the game") 

 

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][5][d][6]; 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):

 

Commingled Funds

            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][1][d][1].  However, any money in account above $38,786 and being disputed must await trial for resolution.