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In the case below from Kings County Supreme Court, Judge Eric Prus decides to order a hearing on how much a husband should pay in child support after his income increased from $45,000.00 per year to roughly half a million dollars. Petrychenko v. Solovey
1028/08
SUPREME COURT OF NEW YORK, KINGS COUNTY240 N.Y.L.J. 25July 29, 2008, Decided
Justice Eric I. Prus
ORDER
Upon the Order to Show Cause, dated January 16, 2008, the affidavit of __________, dated
January 10, 2008, the affirmation of _____________, dated January 10, 2008, the Order to Show
Cause, dated February 27, 2008, the affirmation of ______________., dated February 24,
2008, the affidavit of ______________ dated February 24, 2008, the reply affirmation of ____________________ dated
April 24, 2008, the reply affidavit of _______________, dated April 24, 2008, the
affirmation of ______________, dated May 12, 2008, and upon all exhibits annexed
thereto and upon oral argument:
The parties to this matrimonial action have each submitted applications related
to the non-custodial parent's obligation to pay child support.
Plaintiff/husband claims that his responsibility to pay support pursuant to a
Settlement Agreement, a Stipulation modifying the terms of the Agreement and a
Judgment of Divorce are contrary to the dictates of the Domestic Relations Law.
Defendant/wife contends in her request to the Court that the plaintiff should
be held to his support obligations and should also be directed to pay private
school tuition for one of the parties' two children.
Specifically, plaintiff's Order to Show Cause seeks an Order for the Court to
declare invalid, set aside, modify, amend and reform the child support
provisions of the parties' Judgment of Divorce (the Judgment) dated April 10,
2003, the parties' Separation Agreement, (the Agreement) dated March 6, 2001,
and the parties' Stipulation Agreement (the Stipulation) modifying and amending
the Separation Agreement, dated December 2, 2002, since the child support
provisions are not in compliance with Domestic Relations Law (the DRL) §240
(1-b) (h). In the alternative plaintiff seeks an order to vacate, modify, amend
or reform the child support provisions of the Judgment, Agreement and
Stipulation since plaintiff was unaware of the relevant provisions of the Child
Support Standards Act (the CSSA) and, as such, the child support obligations
are unfair and inequitable. Also in the alternative, plaintiff seeks to modify,
amend, or reform the child support provisions of the Judgment, the Agreement
and the Stipulation because of an unanticipated change of circumstances by
virtue of the fact that his income has increased dramatically and so his
current child support obligations far exceeds the needs of the children.
Plaintiff asks this Court to determine the correct amount of support so that
said amount is in compliance with the CSSA.
Defendant's application seeks an interim amount of child support or $10,000 in
child support per month and a direction that the plaintiff pay all tuition and
related expenses for the parties' son to attend Poly Prep private school in Brooklyn
commencing September of 2008. Defendant also seeks certain discovery related to
the plaintiff's income and business tax returns. Defendant requests counsel
fees.
Facts pertinent to the resolution of these applications are as follows:
• September
2, 1994 - The parties married
in Odessa, Ukraine.
• August
26, 1996 - The parties' older
son was born.
• May
29, 1998 - The parties'
younger son was born.
• March
6, 2001 - The parties agreed
to separate and executed the Agreement. The terms of the Agreement with respect
to child support were for the plaintiff to pay the defendant 25 percent of his
monthly income until he completed his medical residency and fellowship
training. Subsequent to these programs, plaintiff was to pay the defendant 30
percent of his monthly income. And, in the event that the defendant was
unemployed, the plaintiff was required to pay an additional 10 percent of his
monthly income. Clearly, the plaintiff's obligation was higher than that
required by the CSSA. Furthermore, the Agreement did not call for any applied
cap or limitation on the plaintiff's income. The Agreement also recited the
following with respect to the CSSA:
F. The parties are aware of the provisions of Section 240 (1-b) of the [DRL]
and Section 413 (1) of the Family Court Act . . . and the guidelines for child
support established thereby. The parties are aware that under said Act, a
non-custodial parent of two children may be required to pay the custodial parent
25 percent of his or her gross income from all sources, less certain
deductions, and that it is possible that various factors may result in
additional income being imputed or attributed to the non-custodial parent. The
parties are further aware that, if their combined income exceeds $80,000, as is
the case herein, a court has discretion to order increased support based on
such additional income. The parties are aware that the court may direct a
non-custodial parent to pay a share of medical, childcare and educational
expenses. The parties are further aware that the court may not apply the
percentage formulation if it finds that to do so would be unjust or
inappropriate . . . .G. The parties are aware that the basic child support
obligations provided for in the [CSSA] would presumptively result in the
correct amount of child support to be paid. For the purposes of calculating the
child support payments the Income shall be calculated as gross income minus
FICA and City income taxes deductions). The parties agree that the Husband's
income is approximately $40,386.22 per year ($44,989.00 less $3,530.80 in FICA
payments and $1,071.98 City income taxes/deductions). The parties agree the
Wife has no income at this time. The parties further agree that the pro rata
contribution of the Husband to the combined income is 100 percent and the pro
rata contribution of the Wife to the combined income is 0 percent. The parties
agree that based on their combined incomes up to $80,000, the amount of child
support payable by the Husband would have been approximately $10,096.55 yearly.
The Husband agrees to pay child support in excess of the amount provided by the
guidelines.
• May
15, 2002 - The plaintiff
commenced an action for divorce by filing a Summons with Notice.
• December
2, 2002 - The parties
executed the Stipulation which modified and amended the Agreement. The relevant
child support paragraphs of the Stipulation read as follows:
The provisions that are contained in paragraph "G." of "5. CHILD
SUPPORT " . . . of the parties' Separation Agreement are hereby canceled
and in place thereof the following provisions are substituted therefor as
"G." and "H.": "G. The parties have been advised of
the [CSSA] and all of its provisions, which set forth guidelines for child
support obligations, and acknowledge that the [CSSA] has been fully explained
to their satisfaction by their respective attorneys. With said knowledge and
understanding of the [CSSA], the parties have voluntarily entered into this
Agreement, containing the provisions for child support as set forth herein.
More particularly, the parties acknowledge that the [CSSA] presumptively sets
the need of two . . . children of the parties at 25 percent of the combined
parental income up to $80,000 per year and said percentage and/or an additional
discretionary sum of combined parental income over $80,000 per year. Because
the Husband claims child support income of $45,415.24 and the Wife claims child
support income of $0, their combined parental income is less than $80,000 per
year. Based upon the combined annual parental income of $45,415.24, the child
support payments required under the [CSSA] to be paid by the Husband to the
Wife based upon a percentage of parental income is $946.15 per month which
obligation is consistent with the sums provided for in this Agreement, plus his
obligation for, or contribution to, medical insurance, life insurance, medical
and dental expenses and cost of summer camp, as agreed and subject to the
adjustment of child support as provided in the separation agreement.
• April
10, 2003 - A Judgment of
Divorce was filed with the Supreme Court, Kings
County. The provisions of the Agreement and the Stipulation
were incorporated into the Judgment of Divorce but did not merge therein.
• November
30, 2007 - Ultimately, the
plaintiff came to earn close to one half million dollars a year and was paying
the defendant $8,000 a month in child support. The plaintiff then unilaterally
and without court order, reduced his support obligations to $3,000 a month. The
defendant filed a Petition for Enforcement of an Order of Support and a
Petition for Modification of an Order of Support in Family Court, Kings
County. Plaintiff subsequently filed a lawsuit to declare
the Agreement and Stipulation invalid and/or to set aside, modify, amend or
reform the child support provisions of the Judgment, Agreement and Stipulation.
All actions and proceedings were consolidated with the instant applications in
this Supreme Court matrimonial part.
A close reading of the child support provisions of the Agreement, the
Stipulation the Judgment of Divorce forces this Court to conclude that the
plaintiff, a medical doctor, represented by counsel at all times, did not
misunderstand his statutory child support obligations or misapprehend the terms
of the Agreement, the Stipulation or the Judgment of Divorce. Clearly,
plaintiff's consent to the Agreement and the Stipulation was knowingly made.
And, given the language in the documents in question and his representation by
competent counsel, this Court finds that he had to be mindful of the
presumptively correct amount of child support to be awarded pursuant to the
CSSA. The question remains whether the parties' agreed upon child support
provisions which required plaintiff, the non-custodial parent, to pay a
significantly higher percentage of support (30 percent after his residency and
fellowship plus an additional 10 percent if the wife is unemployed) than that
mandated by the CSSA (25 percent up to $80,000 and 25 percent or another
percentage on part or all of income above $80,000) violates the DRL and must be
vacated.
The DRL obligates parties "opting-out" of or deviating from the
CSSA's applicable percentages to abide by certain guidelines. Specifically, DRL
§240 (1-b) (h) states, in pertinent part as follows:
(h) A validly executed agreement or stipulation voluntarily entered into
between the parties . . . .presented to the court for incorporation in an order
or judgment shall include a provision stating that the parties have been
advised of the provisions of this subdivision, and that the basic child support
obligation provided for therein would presumptively result in the correct
amount of child support to be awarded. In the event that such agreement or
stipulation deviates from the basic child support obligation, the agreement or
stipulation must specify the amount that such basic child support obligation
would have been and the reason or reasons that such agreement or stipulation
does not provide for payment of that amount. Such provision may not be waived
by either party or counsel . . . . Any court order or judgment incorporating a
validly executed agreement or stipulation which deviates from the basic child
support obligation shall set for the court's reasons for such deviation.
In the instant case, plaintiff entered into the Agreement and the Stipulation
when he was a medical resident earning approximately $45,000 a year with a
significantly higher earning potential. While this Court finds that the
plaintiff knowingly entered into the divorce settlement with a full
understanding of what he would have been obligated to pay pursuant to the CSSA,
there is a total absence of any explanation as to why the parties agreed to
deviate or what the basis was for such a deviation which would have a dramatic
effect once plaintiff reached his earning potential. There was no reference to
the factors that need to be considered when approving a deviation and as
embodied in DRL §240 (1-b) (f). Those factors include, among others, the financial
resources of the custodial and non-custodial parents, the physical and
emotional health of the child and his special needs and aptitudes, the standard
of living the child would have enjoyed had the marriage or household not been
dissolved, the tax consequences of the parties, the non-monetary contributions
that the parents would make toward the care of the child, the educational needs
of either parent, any determination that the gross income of one parent is
substantially less than the other's, and any other facts the court determines
to be relevant. See, Cassano v. Cassano, 85 NY2d 649; Holterman v. Holterman, 3 NY3d 1, Rosenberg v. Rosenberg, 51 AD3d 901. In the instant matter,
there were no articulated reasons for applying a higher than statutory
percentage to the combined income over $80,000 nor was there any indication of
a careful consideration of the parties' circumstances and the children's needs.
Accordingly, plaintiff's application to vacate the provision in the Agreement,
the Stipulation and the Judgment of Divorce with respect to the child support
obligations is granted. Defendant's request, - that in the event this Court
found the child support provisions to be contrary to the DRL, to void the entire
Agreement, - is denied since there has been no proof that the remaining
provisions of the Agreement and/or Stipulation were integrally related to the
child support provisions. See, Ferro v. Bologna, 31 NY2d 30, Toussaint v. Toussaint, 270 AD2d 338.
Defendant also seeks an Order directing the plaintiff to pay the costs of
private school for the parties' son to attend the private school, ___________________.
This request is denied. There is no direction or even suggestion of an
obligation in the parties' Agreement, Stipulation and/or Judgment of Divorce
which would require the plaintiff to pay the private school tuition.
All other requests for relief are denied as being moot. The parties' counsel
are directed to appear in Court on a mutually agreed to date no later than
September 5, 2008, in order to complete an Order directing the parties to
appear for a hearing before a Special Referee for the purpose of determining
the correct amount of child support the plaintiff is obligated to pay pursuant
to the CSSA and the DRL. Any discovery requests needed for the purpose of
conducting such a hearing may be addressed before the Special Referee at the
appropriate time. The Special Referee shall also determine issues related to
amounts due and owing, if any, from either party, since this Court directed
interim child support in the amount of $5,000 per month.
The Orders to Show Cause are hereby resolved as noted hereinabove.
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