Important New Decisions - October 19, 2011

Maintenance Award Should Not Provide for an Automatic Increase upon the Prospective Emancipation of Each of Parties' Children

In O’Brien v O’Brien, --- N.Y.S.2d ----, 2011 WL 4839062 (N.Y.A.D. 2 Dept.) the Supreme Court found that the plaintiff former wife had an annual income of $33,262 from all sources, and the defendant former husband had an annual income of $115,747 from all sources. The parties were divorced by judgment dated November 30, 2009. In addition to child support of $2,625 per month, plus support arrears, the Supreme Court awarded the plaintiff maintenance in the amount of $1,375 per month over a period of 10 years, to increase as each of the parties' six children becomes emancipated, so that the plaintiff would receive the total sum of $4,000 per month in combined child support and maintenance for a period of 10 years, plus maintenance arrears. The Supreme Court also awarded the plaintiff an attorney's fee in the amount of $10,000. The plaintiff was to remain in the marital residence and pay all carrying costs. The Appellate Division pointed out that the awards of child support, maintenance, arrears, and an attorney's fee were based upon the Supreme Court's calculation of the parties' respective incomes. It found that Supreme Court made a mathematical error in calculating the plaintiff's income. The numbers reflecting the various components of the plaintiff's annual income, as set forth by the Supreme Court in its decision, added up to a total of $54,163, not $33,262, as erroneously stated by the Supreme Court. It pointed out that a court has the inherent power to relieve a party from judgments taken through mistake or inadvertence in the interest of justice, and directed that the awards of child support, maintenance, arrears, and an attorney's fee had to be recalculated based on the correct figures. It also found that with respect to one of the components of the defendant's annual income, the Supreme Court attributed an incorrect amount. Three of the components were supported by the record. However, the record did not support the Supreme Court's calculation and imputation of $15,376 in annual benefits from the defendant's employer for use of an automobile and cell phone, along with the employer's payment of expenses attributable to the use of those items. It observed that Domestic Relations Law 240(1-b)(b)(5)(iv)(B) provides that the Supreme Court may, in its discretion, "attribute or impute income from ... automobiles or other perquisites that are provided as part of compensation for employment to the extent [they] constitute expenditures for personal use, or ... directly or indirectly confer personal economic benefits." Here, although the defendant's employer expended the sum of $15,376 in 2007 for the defendant's use of an automobile and cell phone and related expenses, the amount attributable to income was considerably smaller in light of the defendant's testimony that only 10% of his use of the automobile, and only a "portion" of his use of the cell phone, were personal uses. The Appellate Division observed that upon remittal for recalculation, the discrepancy between the parties' incomes would necessarily be smaller than previously calculated, and, the defendant's pro rata share of the basic child support obligation had to be recalculated. It also directed that upon remittal, the Supreme Court had to recalculate the award of maintenance based upon factors including the parties' respective incomes as recalculated, their pre-divorce standard of living, and the financial resources of each, considered separately, balancing the plaintiff's needs with the defendant's ability to pay. The Appellate Division held that that the maintenance award should not provide for an automatic increase upon the prospective emancipation of each of the parties' children. Maintenance is designed to give the spouse economic independence and should continue only as long as necessary to render the recipient self-supporting. The award should meet the recipient spouse's reasonable needs while providing an appropriate incentive for the recipient to become financially independent. The amount of the maintenance award is a discretionary determination based upon a number of interrelated facts then in existence; unless a future event is imminent and measurable, an award of maintenance should not include a provision for increase or decrease upon the happening of a particular future event. Here, the provision for automatic increase of maintenance upon the emancipation of each of the parties' children ignored other factors which may come into existence at the time of each child's emancipation. Therefore, the parties' changing needs are best addressed in a future application for modification of the amount of maintenance.
The Appellate Division found, based upon the apparent discrepancy between the parties' income and other circumstances, that Supreme Court did not improvidently award the plaintiff an attorney's fee. However, the amount of the award was premised upon an erroneous calculation of the parties' respective incomes. It directed that upon remittal, the Supreme Court should recalculate an appropriate award to the plaintiff of an attorney's fee.


Deprivation of Right to Counsel In a Custody or Visitation Proceeding is Denial of a Fundamental Right Which Requires Reversal

In Matter of Rosof v Mallory, --- N.Y.S.2d ----, 2011 WL 4839081 (N.Y.A.D. 2 Dept.) at the commencement of a hearing to determine whether the father should have only supervised visitation with his daughter, the father's attorney asked to be relieved, and the father consented to her discharge. The father asked that new counsel be appointed, but the Family Court declined to do so, and the father represented himself. The Appellate Division held that the father, as a respondent in a proceeding pursuant to Family Court Act article 6, had the right to be represented by counsel. To determine whether a party is validly waiving the right to counsel, the court must conduct a "searching inquiry" in order to be reasonably certain that the party understands the dangers and disadvantages of giving up the fundamental right to counsel. Here, the Family Court conducted no inquiry at all to determine whether the father was waiving the right to counsel. Requiring the father to try the matter without the benefit of counsel impermissibly placed the Family Court's interest in preventing delay above the interests of the parents and the child, and violated the father's right to be represented by counsel. The deprivation of a party's fundamental right to counsel in a custody or visitation proceeding is a denial of due process which requires reversal, regardless of the merits of the unrepresented party's position . The matter was remitted to the Family Court for a new hearing on the mother's petition and a new determination.


Supreme Court Finds No Basis for a Presumption That a Parent's Obligation to Pay for College Is to Be Limited to the Cost of a Suny Education Unless Proven Otherwise

In Pamela T v Marc B., --- N.Y.S.2d ----, 2011 WL 4861584 (N.Y.Sup.) the Supreme Court concluded that the proposition that before a parent can be compelled to contribute towards the cost of a private college there must be a showing that a child cannot receive an adequate education at a state college is a doctrine that in many cases is harmful to the children of divorced parents, acts to discriminate against them, and is largely unworkable.
The parties were divorced on December 23, 2008. They had two sons, one who was 18 and one who was 16. The judgment of divorce incorporated a custody agreement and a stipulation of settlement by which the parties had resolved all issues of the divorce except for those concerning child support. No mention was made in either the decision, the custody agreement or the stipulation of settlement as to the payment of the children's college tuition and expenses. In 2007, the elder child was diagnosed with "moderate emotional difficulty" and learning/anxiety disorders, which necessitated certain educational accommodations. Despite this diagnosis, he graduated in 2011 from Beacon High School, a selective public high school in Manhattan. He was accepted at Syracuse University, SUNY Binghamton and SUNY Buffalo, along with a number of other schools. Syracuse, which awarded him $3,000 in financial aid, cost approximately $53,000 a year to attend as an undergraduate, while SUNY Binghamton and SUNY Buffalo cost only about $18,000 a year. Although the child visited Binghamton and gave serious consideration to going there, he ultimately decided to attend Syracuse. He was now a freshman there studying computer engineering and computer graphics.
The parties were both practicing attorneys in New York City. Plaintiff worked for
the Metropolitan Transit Authority Inspector General's Office and defendant was
self-employed as a solo practitioner. Plaintiff's 2010 federal income tax return reported adjusted gross income of $109,896. Defendant's 2010 federal income tax return reported adjusted gross income of $105,135. Plaintiff's net worth statement showed she had assets of approximately $1,230,000. Defendant's net worth statement showed he had approximately $580,000. Both plaintiff and defendant went to private undergraduate colleges and law schools, with plaintiff graduating from Northwestern University and New York University School of Law, and defendant graduating from Columbia University and Benjamin N. Cardozo School of Law.
Defendant did not oppose an order directing him to contribute to his older child's college education, but he asked the court to apply the SUNY cap and limit his responsibility to a percentage of the costs of a state university education rather than to a percentage of a private college education. Defendant's position was based on his claim that he was unable to meet the financial demands of paying for private college and on his belief that his son could receive as good an education at SUNY Binghamton as he could at Syracuse.
Supreme Court observed that Domestic Relations Law 240(1- b)(c)(7) conferred upon the courts of this state the authority to "direct a parent to contribute to a child's private college education, even in the absence of special circumstances or a voluntary agreement. The statute provides that when a court exercises its discretion to direct such a contribution from a parent, it is to do so "having regard for the circumstances of the case and the parties, the best interests of the child, and the requirements of justice." Case law augmented the provisions of DRL 240(1-b)(c)(7) by setting forth specific factors that are to be considered in determining whether to award college expenses. These factors include the educational background of the parents and their financial ability to provide the necessary funds, the child's academic ability and endeavors, and the type of college that would be most suitable for the child. (See Rosado v. Hughes, 23 AD3d 318 (1st Dept 2005); Naylor v. Gastler, 48 AD3d 951 (3d Dept 2008); Reiss v. Reiss, 56 AD3d 1293 (4th Dept 2008).
The Court observed that DRL 240(1-b)(c)(7) does not provide for is a SUNY cap. The SUNY cap is a concept that has been judicially created by way of a string of decisions rendered since the enactment of the statute. The problem with these cases was that they provided little in the way of instruction as to when a SUNY cap might be properly applied over the objection of the parent who is seeking an award for college
expenses. The Supreme Court found that Berliner v. Berliner, 33 AD3d 745, 749 (2d Dept 2006) was instructive because the Second Department’s statement that there "is no basis in this record" for imposing the SUNY cap implied that the burden falls on the proponent of the cap to demonstrate that it is warranted. The inference to be drawn is that there is no presumption that a parent's obligation to pay for college is to be limited to the cost of a SUNY education unless proven otherwise; if anything, the presumption goes the other direction. It was also instructive because the decision's reference to the "so-called SUNY cap' "can be seen as an indication that even the Second Department views the SUNY cap as something less than an established doctrine firmly ensconced in the fabric of family law.
Supreme Court rejected defendants argument that plaintiff be required to prove that Syracuse was a better school than SUNY Binghamton in order for him to be required to pay Syracuse's higher expenses. He noted that it is difficult to conceive of a workable procedure, let alone a methodology, for a court to make a finding that one college is "better" than another. He stated that the real issue is what college or university is the best for the individual child in question in the ways that matter most to that particular child. The Court found that it had been shown that there was ample reason to support the child's choice of Syracuse, irrespective of whether it is ranked lower, higher or the same as SUNY Binghamton or any other SUNY school. Provided that the funds are available to finance the child's education, the fact that Syracuse was a private school and cost more than a public school was not a reason to interfere with the child going to the school he chose and he wanted to attend. This was particularly so in light of the fact that both his parents went to private colleges. One of the
factors to be considered when making a determination under DRL 240(1-b)(c)(7) is the parents educational background. Inasmuch as plaintiff attended Northwestern and defendant attended Columbia, it could reasonably be assumed that there would exist an expectation in the family, and in the child himself, that he too could attend a private college.
Having found that the child's academic ability and endeavors, the type of college
that would be most suitable for him, and the educational background of the parents
were all factors that called for plaintiff to contribute to his son's education at
Syracuse University, the court had to consider the defendant's ability to pay. It was defendant's position that even though plaintiff may have the means to pay the high cost of their son attending Syracuse, he lacked the means to do so. Consequently, he contended that he should have to pay no more than $9,000 a year towards his son's education, an amount that is roughly 50% of the present annual cost of a SUNY school.
The court rejected defendant's contention as to his inability to pay a significant
share of the child's actual educational expenses being incurred at Syracuse. It was true that plaintiff has considerable more savings than defendant and that she had a pension plan through her employment. But it was equally true that defendant's net income the past year was over $100,000, which was only about $5,000 less than plaintiff's net income for the same period, and that he benefitted from the substantial tax deductions and write offs that come from being self-employed. Also, defendant, although remarried for a number of years, had chosen to keep a second apartment in addition to the residence he shared with his new wife. Defendant had paid and continued to pay a very small amount in basic child support and child support add-ons. If defendant's child support obligation were to be recalculated using his 2010 income, it would be far higher than the $686 monthly that he paid.
Supreme Court held that there was no basis to impose the SUNY cap, to the extent that it should be imposed at all, where the party seeking to invoke the cap has the financial ability to contribute towards the actual amount of his or her child's college expenses. (Citing R.E. v. S.E., 27 Misc.3d 1216(A); Bonnie B. v. Michael B., 6 Misc.3d 1004(A), 2004 WL 3050804 (Sup Ct, Suffolk County 2004). It found that the defendant had the income and the assets, as well as the ability to keep producing substantial income through his law practice, to make a significant contribution to his sons's college education. Although defendant's contribution should be less than plaintiff's, based on the difference between their net assets, and in particular what each of them had available for eventual retirement, that contribution should not be subject to some artificial construct like the SUNY cap. Rather, it should be based, as with all other child support obligations, on the respective finances of the parties. On this basis, the court concluded that defendant shall be obligated to contribute 40% of the total cost of the elder child attending Syracuse University, with those costs to include tuition, room and board, fees and books.
The Court observed that it has the discretion to direct parents to pay the
costs of their children's college expenses when the separation agreement or other
stipulation between the parents is silent in this respect. However, such a directive is premature when college is several years away, the choice of college and the cost of tuition are uncertain, and the child's academic interests and abilities are not supported by evidence. (Citing Gilkes v. Gilkes, 150 A.D.2d 200, 201 (1st Dept 1989); see also LaBombardi v. LaBombardi, 220 A.D.2d 642, 644 (2d Dept 1995). Here, college was more than a year and a half away for the younger child. It was therefore premature and unduly speculative to attempt to assess what the child's plans are with regard to college and the what the costs will be. As a result, plaintiff's application for this relief was denied without prejudice to renew at a subsequent date when the child has committed to attend college and the costs of attendance are supported by evidence.