DRL 240 (1-b) Applies Only to Basic Child Support, Which Does Not Include College Expenses

In Colucci v Colucci, --- N.Y.S.2d ----, 2008 WL 4170019 (N.Y.A.D. 2 Dept.) the plaintiff mother and the defendant father, who had two children were divorced in 1997. In their stipulation of settlement, which was incorporated but not merged into the judgment of divorce they agreed to be bound by, and for the stipulation to comply with, the provisions of the Child Support Standards Act (Domestic Relations Law 240[1-b]; Family Ct Act 413[1][b] ). The stipulation provided, under the section entitled "CHILD SUPPORT," that the father must pay the mother a set amount per month in basic child support, which amount was determined in accordance with the CSSA. The stipulation of settlement further provided, in the child support section, that the parties are to share on a pro rata basis any child care expenses incurred by the mother that are necessary for her work or for school leading to work, as well as the costs associated with the children's extracurricular activities. The stipulation of settlement also provided, in the child support section, that the parties are to exchange their federal income tax returns annually in order to make any necessary adjustments to the father's basic child support obligation and to the parties' pro rata basis underlying the amount of child support that would be due under the CSSA. Under a separate section of the stipulation of settlement entitled "COLLEGE EXPENSES," the father agreed to be solely responsible for the children's college education expenses. In June 2007, 10 years after the stipulation was executed and 2 months before the older child was to start college, the father moved, inter alia, for a downward modification of his obligation to pay for the children's college education expenses. Claiming that his income had decreased and the mother's had increased since the divorce, the father asked the Supreme Court to "reallocate" the parties' respective obligations with respect to the children's college education expenses, based on the parties' current incomes, so that he would pay 62% of the expenses, and the mother would pay the remainder. In opposition, the mother contended that, in accordance with the stipulation of settlement, the parties agreed that the father would pay 100% of the children's college education expenses regardless of any change in the parties' income. Concluding that there was a "change in circumstances," and purporting to take into account the best interests of the children, the Supreme Court granted that branch of the father's motion which was for a downward modification of his obligation to pay the children's college education expenses, to the extent of directing the father to pay 75% of those expenses. The Appellate Division reversed. It held that the terms of a separation agreement "incorporated but not merged into a judgment of divorce operate as contractual obligations binding on the parties" (Matter of Gravlin v. Ruppert, 98 N.Y.2d 1, 5). Further, a matrimonial settlement is a contract subject to principles of contract interpretation .and a court should interpret the contract in accordance with its plain and ordinary meaning. Where a matrimonial settlement "is clear and unambiguous on its face, the parties' intent must be construed from the four corners of the agreement, and not from extrinsic evidence. Here, the parties' stipulation of settlement expressly obligated the father to pay 100% of the children's college education expenses, in addition to, and separate and apart from, his obligation to pay child support. Notably, the provision in the stipulation requiring the father to pay 100% of the children's college education expenses is set forth in a section of the stipulation separate from the section containing his obligation to pay child support, and the two sections do not reference each other in any manner. Significantly, only the section pertaining to child support contains provisions regarding reallocation of the parties' respective obligations should there be any change in the income of either one. Under the circumstances, it was apparent that the parties agreed that college education expenses would not constitute a component of their obligation to pay basic child support. It was also apparent from the stipulation of settlement that the parties intended that the father's obligation to pay 100% of the children's college education expenses was not subject to modification based on any change in the parties' respective incomes. While Domestic Relations Law s 240(1- b)(h) requires stipulations and agreements to contain a provision that the parties were advised of the CSSA and knowingly "opted-out" of its provisions that provision specifically applies only to "[b]asic child support," which generally does not include college education expenses. Under such circumstances, there was no basis for the court to interfere with the parties' contractual agreement requiring the father to pay 100% of the children's college expenses.

Ability to Become Self-supporting with Respect to Some Standard of Living Does Not Obviate Need to Consider Predivorce Standard of Living. Voluntary Payment of Tuition May Not Be Recouped or Credited Against Pendente Lite Child Support

In Ruanne v Ruanne, --- N.Y.S.2d ----, 2008 WL 4491472 (N.Y.A.D. 2 Dept.) the parties were married in 1986 and had three children. In May 2003 the plaintiff commenced the action for divorce. The Appellate Division held that in determining the appropriate amount and duration of maintenance, the court is required to consider, among other factors, the standard of living of the parties during the marriage and the present and future earning capacity of both parties. While the Supreme Court properly found that the defendant was capable of returning to work and re-establishing her business, the wife's ability to become self-supporting with respect to some standard of living in no way obviates the need for the court to consider the predivorce standard of living. The maintenance award of $6,000 per month for eight years would permit the defendant to maintain a semblance of the predivorce standard of living while allowing her a reasonably sufficient time to become self-supporting. The Supreme Court properly denied those branches of the plaintiff's motion, made in April 2004 and referred to trial, which were, in effect, for a downward modification of his pendente lite support obligation and for a credit against support arrears for tuition payments made to the school of the two youngest children. Modifications of pendente lite awards should be sparingly made and then only under exigent circumstances such as where a party is unable to meet his or her own needs, or the interests of justice otherwise require relief. While the papers submitted on the motion demonstrated that the plaintiff's salary declined in 2003, the evidence adduced at trial established that he also accumulated over $100,000 in capital gains during that year. Accordingly, the plaintiff had the resources available to sufficiently provide for his family as established in the pendente lite award. Further, the pendente lite order did not address the issue of tuition payments for the children's school. Accordingly, the plaintiff's voluntary payment of tuition may not be recouped or credited against amounts owing under the order (Horne v. Horne, 22 N.Y.2d 219) In distributing the marital assets, the Supreme Court providently exercised its discretion in characterizing a life insurance policy and margin account as active assets and valued them as of the date of commencement of the action. The plaintiff depleted those assets during the pendency of the action, the majority going toward the purchase and furnishing of his new home and the installation of a new driveway and basketball court. Their decrease in value was thus due to the plaintiff's decisions and not mere market fluctuations.

Absent Express Finding of Willfulness Prejudgment Interest Improperly Imposed. When Findings of Support Magistrate Are Insufficient Family Court May Consider Affidavits and Other Submissions Without Holding a Hearing

In Matter of Regan v Zalucky, --- N.Y.S.2d ----, 2008 WL 4809541 (N.Y.A.D. 3 Dept.), the Family Court fixed the father's liability for arrears of child support and awarded interest at 9% per annum on each of his obligations. The Appellate Division reversed and remitted for further proceedings. It pointed out that once a money judgment has been ordered and entered, interest accrues until the judgment has been paid ( Family Ct Act 454[1]; 460[1]; CPLR 5003). Prejudgment interest can be ordered only after a finding of a willful disregard of a lawful court support order (Family Ct Act 460 [1]; Matter of Kaltwasser v. Kearns, 235 A.D.2d 738, 740 [1997] ). Despite the statutory mandate directing that a money judgment shall be ordered when any amount of child support arrears are established ( Family Ct Act 454[2][a]) it appeared that no money judgment had been ordered or entered. It did not appear that Family Court made any express finding of willfulness before imposing prejudgment interest. Absent such a determination, prejudgment interest was improperly imposed. In a footnote the Appelate Division rejected the father's contention that Family Ct Act 439(e) precludes Family Court, when it has concluded that the findings of the Support Magistrate are insufficient to render a final determination, from considering evidence in the form of affidavits and other submissions without holding a hearing. Where the court is endeavoring to fix amounts due on liability already established, and submissions are made on notice and with opportunity to respond, it found nothing to preclude Family Court, where possible, from rendering a final order based upon submissions.