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Recent Appellate Division Family Law Decisions- December 4, 2013

On December 4, 2013, the Second Department decided the following New York Family Law cases:

Reese v. Reese: In a post-judgment matrimonial proceeding, the mother sought an upward modification of the father’s child support obligation. The court held that a child support agreement based on a stipulation of settlement which was incorporated but not merged into the judgment of divorce should not be disturbed unless the the party can demonstrate that that the agreement was unfair or inequitable, there was an unanticipated change in circumstances, or that the children’s needs were no longer being met. Here, the mother could not meet her burden and her request for an upward modification was denied.

Schermerhorn v. Vermillion: The court held that a parent is obligated to support his or her minor child until the child reaches the age of 21, unless the child becomes emancipated, which occurs once the child becomes economically independent through employment and is self supporting. In this case, the court held that the child was not emancipated because the child generally did not work full time and that she lived with her mother who paid her expenses. Because she was not economically independent of her parents, the Father’s request to terminate his child support payments was denied.

Briggs v. McKinley-Mays: In this child support proceeding the Father moved to reduce his child support arrears claiming that he suffered a heart attack which rendered him disabled and caused him to fall below the poverty line. Section 451 of the Family Court Act provides that the court may modify, set aside or vacate any order issued in the court of the proceeding, provided, however, that the modification set aside or vacatur shall not reduce or annul child support arrears accrued prior to the making of an application. However, a subsection of that law provides that where the non-custodial parent’s income is less than or equal to the poverty income guidelines amount for a single person as reported by the federal department of health and human services, unpaid child support arrears in excess of $500 shall not accrue. Therefore, for any period of time that the non-custodial parent’s income is below or equal to the poverty line and they do not satisfy their child support obligation, the prohibition against reduction of accrued child support arrears is not triggered because there are no accrued arrears in excess of $500 to reduce. Here, the Father was entitled to a hearing to prove that his income did, in fact, fall below the poverty level and if successful, his arrears for that period of time must be capped at $500.

Alleva v. Alleva: The amount and duration of maintenance is a matter committed to the sound discretion of the trial court and every case must be determined on its own unique facts. The factors to be considered in awarding maintenance include: the standard of living of the parties during the marriage, the income and property of the parties, the distribution of marital property, the duration of the marriage, the health of the parties, the present and future earning capacity of both parties, the ability of the party seeking maintenance to become self-supporting, and the reduced or lost lifetime earning capacity of the party seeking maintenance. Here, the court awarded the plaintiff $750 per week until she becomes eligible for full Social Security benefits or remarries. The court also found that it was appropriate to require the defendant to maintain life insurance on her behalf to secure his maintenance obligation.


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