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Monday, April 02, 2012

New Child Support Standards Chart released April 1, 2012 

According to the Child Support Standards Chart, [LDSS 4515 (4/12)] released April 1, 2012, prepared by New York State Office of Temporary and Disability Assistance, Division of Child Support Enforcement, the 2012 poverty income guideline amount for a single person as reported by the United States Department of Health and Human Services is $11,170 and the 2012 self-support reserve is $15,080. 

The combined parental income amount is $136,000. It will be adjusted every two years (effective January 31st for applicable years) based on the average annual percent changes to the federal Department of Labor’s Consumer Price Index for Urban Consumers. The adjusted combined parental income amount will be announced and available at January 31st until such time as this revised form is released. st for applicable years) based on the average annual percent changes to the federal Department of Labor’s Consumer Price Index for Urban Consumers. The adjusted combined parental income amount will be announced and available at until the revised Child Support Standards Chart is released.

The Child Support Standards Chart is released each year on or before April 1. The income tables are used to determine the annual child support obligation amount pursuant to the provisions of Chapter 567 of the Laws of 1989.  The chart may be downloaded from

Res Judicata Bars Court from Considering Fathers Biological Parental Status Which Holds He Has No Standing to Seek Visitation with Child

In Matter of Weaver v Durfy--- N.Y.S.2d ----, 2012 WL 895497 (N.Y.A.D. 4 Dept.) Family Court  dismissed the Petitioners prior petition seeking to establish paternity of the child. The court found that respondents were married when the child was born and at the time of the hearing on the paternity petition and that, based upon petitioner's admissions, he had acted as a friendly neighbor to the child, although he had regular and significant contact with the child with respondents' consent. The court therefore determined that it was not in the best interests of the child to disrupt her legitimate paternal relationship with respondent father.  After he perfected his appeal from the prior order dismissing the paternity petition, petitioner discontinued that appeal based on his agreement with respondents that respondent mother and the child would participate in DNA testing, which revealed a probability of 99 .99% that petitioner was the child's biological father, and that respondents would permit petitioner to visit with the child. The child subsequently began to receive Social Security benefits as petitioner's biological child. Thereafter, respondents refused to permit petitioner to visit with the child, and he filed a petition seeking, inter alia, visitation based upon the DNA test results. Family Court determined that the petition was barred by res judicata and dismissed the petition. The Appellate Division affirmed. It observed that the resolution of the proceeding presented a coalescence of the various societal interests promoted by the doctrine of res judicata, particularly the need for finality, stability and consistency in family status determinations. Thus, the court properly determined that it was prohibited by the doctrine of res judicata from considering petitioner's biological parental status as a basis for determining his standing to seek visitation with the child and as petitioner has no legal standing to seek visitation with the child, the court properly dismissed the petition.

Where Agreement Required Decedent to Name Children as the "Joint Irrevocable Designated Beneficiaries" He Was Without Authority to Name Any Other Person as a Partial or Sole Beneficiary 

In Johnson v New York State and Local Retirement System, --- N.Y.S.2d ----, 2012 WL 895707 (N.Y.A.D. 4 Dept.) Plaintiff Wendy Johnson and Dan Johnson (decedent) were divorced in 1998. During the divorce action, they executed a matrimonial settlement agreement, pursuant to which they were required to name their children, plaintiffs Dane Johnson and Danika  Johnson, as "joint irrevocable designated beneficiaries" of, inter alia, the death benefits provided by their retirement plans. That agreement was subsequently incorporated but not merged into the judgment of divorce. In March 1998, shortly before executing the matrimonial settlement agreement, decedent had named his then girlfriend, defendant Kimberly Leone-Johnson, as a one-third beneficiary of his New York State Retirement Plan death benefit and each of his children as a one-third beneficiary. Leone was not removed as a beneficiary after the judgment of divorce was entered in May 1998 and, moreover, in June 1998 decedent purportedly designated Leone as the sole beneficiary of his retirement plan death benefit.   In July 2000 decedent and Leone executed a prenuptial agreement and were married. Pursuant to that agreement, decedent and Leone expressly waived all rights and claims to each other's pensions and retirement plans. In June 2006, decedent and Leone executed a separation agreement, which contained clauses that, inter alia, reaffirmed the pension and retirement plan waivers contained in the prenuptial agreement and mutually released and waived all rights that decedent and Leone had to each other's estate. Decedent and Leone allegedly reconciled without divorcing just prior to decedent's death in October 2008. No beneficiary changes were made to decedent's retirement plan death benefit after Leone was allegedly named the sole beneficiary in 1998. After decedent died, however, defendant New York State and Local Retirement System (System) notified Leone that decedent's designation naming her as the sole beneficiary was invalid and that the System intended to disburse the death benefit to Leone and the children in accordance with decedent's March 1998 designation.    Plaintiffs commenced an action seeking to designate the children as the joint irrevocable beneficiaries of decedent's retirement plan death benefit in compliance with the matrimonial settlement agreement and to remove Leone as a beneficiary thereof. They moved for summary judgment and Supreme Court determined that Leone and the children were each entitled to one-third of decedent's retirement plan death benefit. The Appellate Division held that Leone was not entitled to any part of decedent's retirement plan death benefit.    The matrimonial settlement agreement clearly required decedent to name the children as the "joint irrevocable designated beneficiaries" of his retirement plan death benefit. As a result of that agreement, decedent was without authority to name any other person as a partial or sole beneficiary of such death benefit. Moreover, any right to that benefit that Leone would have acquired by virtue of being married to decedent was waived by the prenuptial and separation agreements. The court erred in determining that Leone's waiver of her interest in the retirement plan death benefit was not "explicit, voluntary and made in good faith" ( Silber v. Silber, 99 N.Y.2d 395, 404,cert denied 540 U.S. 817). The contention of Leone that decedent's obligation to name the children as beneficiaries of his retirement plan death benefit was solely to provide security for his child support obligation was contrary to a fair interpretation of the matrimonial settlement agreement. It  rejected Leone's further contention that her separation agreement with decedent became void when they allegedly reconciled prior to his death. By its terms, the separation agreement could only be canceled in writing.

Improper for Court to Take Judicial Notice of Factual Material in Filed Net Worth Statement.

In Halse v Halse, --- N.Y.S.2d ----, 2012 WL 850604 (N.Y.A.D. 3 Dept.)  Plaintiff commenced an action for divorce in September 2008 and, thereafter, a pendente lite order was entered which, among other things, directed the parties to submit to drug testing and prohibited the parties from selling or transferring any assets. In June 2010, plaintiff moved to have defendant held in contempt, alleging that she had sold various marital assets and was using drugs and alcohol. After a nonjury trial, Supreme Court issued a judgment of divorce, ordered the equitable distribution of marital assets, awarded maintenance to defendant and ordered plaintiff to pay child support for the parties' two children. In a separate order, the court adjudged defendant to be in contempt of the pendente lite order, but imposed no punishment.
The Appellate Division held that substantial deference is accorded to the trial court's determination regarding equitable distribution so long as the requisite statutory factors were considered. In this case, it was apparent that  Supreme Court considered all of the relevant factors before equitably distributing the parties' marital assets; of particular note was the long duration of the marriage and the parties widely disparate future financial circumstances. Moreover, contrary to plaintiff's contention, the record reflected that Supreme Court adequately addressed defendant's dissipation of marital assets. Notably, the court awarded plaintiff adjustments to compensate him for the value of various items of marital property that had been improperly sold by defendant, including $12,500 representing half of the value of a backhoe.  As for the marital residence, it was not persuaded by plaintiff's contention that he should have been awarded an adjustment based upon defendant's alleged dissipation of that asset. While the evidence did indicate that defendant had not maintained the residence in optimal condition, there was also evidence that the real estate market was overburdened with properties in the residence's price range and that market conditions, in general, had declined. As such, there was no definitive proof that the approximately $200,000 decline in the market value of the house was due solely to defendant's actions. Further, although plaintiff opined that the residence needed between $45,000 and $62,000 in repairs to become marketable, he submitted no proof to support these figures. In awarding defendant maintenance, Supreme Court considered the statutory factors and determined that a maintenance award to defendant in the amount of $3,000 per month for two years and then $2,500 per month for three years was appropriate. Although defendant did not offer a statement of net worth at trial, the record contained sufficient evidence regarding both parties' assets and liabilities to permit it to conclude that the durational maintenance award was a provident exercise of the court's discretion The Appellate Division pointed out in a footnote that although defendant filed a statement of net worth with Supreme Court in 2008, it was not proper for the court to take judicial notice of the factual material contained therein (citing Matter of Grange v. Grange, 78 A.D.3d 1253, 1255 [2010] ).

Failure to Disclose Financial Information and Lack of Counsel Insufficient to Set Aside Prenuptial Agreement 
In Cohen v Cohen, --- N.Y.S.2d ----, 2012 WL 851206 (N.Y.A.D. 1 Dept.) the Appellate Division held that plaintiff's alleged threat to cancel the wedding if defendant refused to sign the agreement did not constitute duress ( Colello v. Colello, 9 A.D.3d 855, 858 [2004]). Nor did the absence of legal representation establish overreaching or require an automatic nullification of the prenuptial agreement, especially as the evidence showed that the agreement was prepared by an independent public official unaligned with either party. Plaintiff's alleged failure to fully disclose his financial situation was also insufficient to vitiate the prenuptial agreement ( Strong v. Dubin, 48 A.D.3d 232, 233 [2008] ). There was no evidence that plaintiff concealed or misrepresented any financial information or the terms of the agreement. To the extent the prenuptial agreement, to be enforceable in New York, must contain an acknowledgment sufficient to entitle a real property deed to be recorded, this requirement was  satisfied by plaintiff's filing, at the direction of the court, of a certificate of conformity attesting to the credentials of the French official who drafted the agreement, and certifying that his proof of acknowledgment of the agreement conformed to the laws of France (Real Property Law 301-a).

Where Supreme Court Refers Issue to Family Court, it  Has  Jurisdiction to Determine Issue of Child Support During  Divorce Action.

In  Francois v Francois, --- N.Y.S.2d ----, 2012 WL 833185 (N.Y.A.D. 2 Dept.) the Appellate Division held that the Family Court had subject matter jurisdiction to hear and determine the issue of child support during the pendency of the divorce action. When an action for divorce is pending, the Family Court may exercise its jurisdiction only in certain situations, such as where the Supreme Court refers an application for support to it ... or where the Supreme Court has not acted concerning support and the spouse is likely to need public assistance" ( FCA 464). Here the Supreme Court referred all issues of child support to the Family Court for a hearing and determination .Accordingly, the Family Court properly exercised its jurisdiction over the child support proceeding.

Spouse generally obligated to pay 50% share of income tax liability if spouse benefits from use of funds or delay in paying tax liability.  Imputation of income may be based upon testimony of expert. Provision for Future Modification Improper.

In Lago v Adrion,--- N.Y.S.2d ----, 2012 WL 833203 (N.Y.A.D. 2 Dept.), the parties were married on September 10, 1995, and had one child, born October 28, 1996. The plaintiff wife commenced the  action by filing a summons and complaint on September 19, 2006, after 11 years of marriage. The parties agreed on joint custody of the child and the primary physical residence of the child with the plaintiff, and consented to a divorce on the ground of constructive abandonment. In March 2010 the parties proceeded to a nonjury trial on certain financial issues.   At the conclusion of the trial, the Supreme Court found that the defendant was a tax attorney with a current income of $475,000 per year, that the plaintiff was not working, and that the plaintiff had a masters' degree in architecture from Harvard University and performed some doctoral work at the Massachusetts Institute of Technology. Based upon her educational qualifications and experience, and expert testimony, the Supreme Court imputed income of $80,000 per year to the plaintiff. The Supreme Court determined that the defendant was obligated to pay $2,041 per month in basic child support based on the plaintiff's imputed income of $80,000 per year, and a finding that the child support percentage should only be applied to the first $150,000 of the defendant's annual income. The supplemental findings of fact stated that "[t]o the extent that this court may have deviated from the guideline standards," it did so for the reasons that the child was "thriving" on the pendente lite child support of $2,041 per month, and the parties' standard of living during the marriage was that of a "middle-class" family. The judgment appealed from further provided that "should the Defendant lose his law license by suspension, revocation, or otherwise, and be unable to sustain his current level of income, such event shall constitute a sufficient change of circumstances warranting application for downward modification" of child support.    With respect to the equitable distribution of property, the Supreme Court concluded that the parties incurred Federal tax liability of $430,476 for 2005 and 2006 up until September 19, 2006, and New York State tax liability of $38,000 for that same period, which constituted a marital debt which should be divided equally between the parties. This tax liability included interest and penalties. The Supreme Court held that the plaintiff's one-half share of that tax liability was $234,238.
The Appellate Division held that Supreme Court properly imputed $80,000 in annual income to the plaintiff based upon her education and experience, and the testimony of the defendant's expert. "In determining a child support obligation, a court need not rely on a party's own account of his or her finances", but may, in the exercise of its considerable discretion, impute income to a party based upon his or her employment history, future earning capacity, and educational background , and what he or she is capable of earning, based upon prevailing market conditions and prevailing salaries paid to individuals with the party's credentials in his or her chosen field . Further, imputation of income may be based upon the testimony of an expert regarding a party's ability to earn an income. Here, the Supreme Court's imputation of income was supported by unrefuted expert testimony and testimony regarding the plaintiff's education and experience.
The Court observed that effective January 31, 2010, the Child Support Standards Act provides that the applicable child support percentage should be applied to the first $130,000 of combined parental income (DRL 240[1-b] [c][2];  SSL111-i[2][b]). Where the parents' income exceeds the income cap, as in this case, the amount of child support in excess of the income cap is determined based upon a consideration of factors set forth in DRL 240 (1-b)(f) "and/or the child support percentage" (DRL 240 [1-b][c][3]). The factors set forth in Domestic Relations Law s 240(1-b)(f) include, in  pertinent part, the financial resources of both parents, the needs of the child, the standard of living the child would have enjoyed had the marriage not been dissolved, nonmonetary contribution that the parents will make to the care and well-being of the child, and any other factor which the court determines to be relevant to the case. Here, the evidence at the trial supported the Supreme Court's conclusion that, during the marriage, the child enjoyed a "middle-class" lifestyle, and her needs were met by the pendente lite child support award of $2,041 per month. The application of the child support percentage to the first $150,000 of the defendant's annual income, and the amount of child support awarded was supported by the record.
  The Appellate Division held that the provision of the judgment of divorce which stated that, "should the Defendant lose his law license by suspension, revocation, or otherwise, and be unable to sustain his current level of income, such event shall constitute a sufficient change of circumstances warranting application for downward modification" of child support, was improper. ( Matter of Knights v. Knights, 71 N.Y.2d 865). This provision of the judgment was deleted.
The Appellate Division observed that the income tax liability of the parties was subject to equitable distribution, but equitable distribution does not necessarily mean equal distribution. A spouse is generally obligated to pay his or her 50% share of income tax liability during the marriage if the spouse benefits from use of the funds or the delay in paying the tax liability.  However, if one spouse makes the financial decisions regarding the income tax return, and earned virtually 100% of the parties' income during the period, the court, in its discretion, may direct that spouse to pay the entire tax liability. The defendant acknowledged that he handled all tax matters for the parties during the marriage, and attributed his inability to pay his taxes from his current income to the fact that his expenses were too high, in part because he had to maintain a rented home for his family while the parties' house in Pawling was being renovated. The evidence adduced at trial indicated that it was his decision to move the parties' full-time residence to the house in Pawling, despite the fact that the house was in "bad shape."  Under the circumstances of this case, it could not  be said that the plaintiff derived a benefit from the defendant's failure to pay the taxes . The Appellate Division held that Supreme Court, in its discretion, should have directed the defendant to pay the entire tax liability.  

Supreme Court Agree’s with Justice Falanga - Holds Plaintiff's Self-serving Declaration about State of Mind Is All Required for Divorce on “Irretrievable Breakdown” Ground, Disagreeing with Schiffer v. Schiffer and  Strack v. Strack.

In Vahey v Vahey, --- N.Y.S.2d ----, 2012 WL 832350 (N.Y.Sup.) Supreme Court granted the defendant’s motion to dismiss the action pursuant to CPLR 3211(a)(7) to the extent that the first and second causes of action, alleging cruel and inhuman treatment and constructive abandonment, respectively, were dismissed.
Supreme Court observed that  CPLR 3016(c) requires that in an action for divorce, "the nature and  circumstances of a party's alleged misconduct, if any, and the time and place of  each act complained of, if any, shall be specified in the complaint ..." In this case, the plaintiff has sought a divorce on three grounds: cruel and inhuman treatment, and an irretrievable breakdown in the  marital relationship. 
The Court agreed with the defendant that a claim of cruel and inhuman treatment was not made out, as it did not specify the time and place of the misconduct, and, in addition, did  not allege conduct that rises to the required level. All that was alleged was that the wife called the husband vile names and used obscene language, told the plaintiff husband that she didn't want to be married to him any more, and that he was not a good husband. This was patently insufficient and this claim was dismissed. 
The plaintiff alleged in his verified complaint that "The relationship between Plaintiff and Defendant has broken down irretrievable [sic] for a period of at least six months."The Supreme Court disagreed with the defendant that CPLR 3016(c) and the cases that cite that statute mandate factual allegations supporting this claim.  CPLR 3016(c) refers to the necessity of pleading allegations of "misconduct." Domestic  Relations Law  170(7) permits a party to seek a divorce upon a sworn statement by that party that the marital relationship between husband and wife has broken down irretrievably for a period of at least six months. This has been pled. This section does not require the plaintiff to allege that the other party was responsible for the breakdown or had misbehaved in any way. The very essence of the law is to dispense with the necessity of proving misconduct by the other spouse. CPLR 3016(c) speaks only of pleading acts of misconduct, and misconduct does not have to be alleged under Domestic Relations Law 170(7). Therefore, it is  more accurate to say that CPLR 3016(c) continues to apply where marital fault is alleged, but does not apply when the plaintiff alleges a breakdown in the relationship, as there is no need to cast blame on the other party. Given the clear language of the statute regarding the need to prove "misconduct," the lack of an amendment to CPLR 3016 indicated that the Legislature was not requiring a party asserting the new "no-fault" ground to plead and prove facts in support of the irretrievable breakdown. If its intention were otherwise, such an amendment to the divorce action pleading requirements would be needed. Rather, all that is required is the sworn statement of the irretrievable breakdown, a statement that finds no counterpart in any of the "fault" grounds. Accordingly, the motion to dismiss was denied as to the claim made under Domestic Relations Law 170 (7).  The Court noted that as the Legislature in adopting section 170(7) has not required the pleading of objective facts of the breakdown, but has required instead no more than a sworn statement of a breakdown by the plaintiff, it did not appear that a plaintiff can be put to his or her proof on the subject. Under this ground the plaintiff's sworn belief about the state of the relationship must be deemed sufficient, for if not the party seeking the divorce on this basis could be put through the same type of litigation regarding the martial relationship that this legislative addition was clearly designed to avoid. The Court agreed with the analysis set forth by Justice Falanga that the section 170(7) ground is inherently subjective in nature, and "a plaintiff's self-serving declaration about his or her state of mind is all that is required for the dissolution of a marriage on the ground that it is irretrievably broken." D.R.C. v. A.C., 32 Misc.3d 293 (Sup Ct Nassau County 2011). The Court disagreed with the views expressed in  Schiffer v. Schiffer, 33 Misc.3d 795 (Sup Ct Dutchess County, 2011) and  Strack v. Strack, 31 Misc.3d 258 (Sup Ct Essex County 2011).
 The Court denied that cross motion  for a sharing of family expenses pro rata based upon the parties' income at the commencement of the action. There was no demonstration that the reasonable needs of the movant or of the parties' children were not being met, as all continued to reside together in the marital residence, and it was apparent that the bills were being paid. The basis of the request for this relief was that plaintiff believed it unfair that the defendant, who retired from the New York City Police Department after the action was commenced, now asserted that she no longer had her full salary and thus had less to contribute to household expenses. Plaintiff, in effect, wanted the Court to "balance the scales" by imputing income to the defendant and to direct specific percentages based on such imputed income. This is not the purpose of a pendente lite award.  Here, there was no proven need for support on the part of the moving party, especially in view of the fact that even before the defendant's retirement the plaintiff's income exceeded hers.

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