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Father Applies for Upward Modification of Child Support

A New York Family Lawyer said in a proceeding pursuant to Family Court Act article 4, the father appeals from an order of the Family Court, Nassau County, which denied his objections to so much of an order of the same court, as denied his petition for an upward modification of the mother’s child support obligation and allocation of child care and college expenses.

A New York Child Custody Lawyer said that the Court ordered that the order, is modified, on the law, by deleting the provisions thereof denying the petitioner’s objections to so much of the order, as denied those branches of the petition which were for an upward modification of the mother’s basic child support obligation and allocation of child care expenses, and substituting therefor a provision sustaining those objections, and vacating the provisions of the order, which denied the branches of the petition which were for an upward modification of the mother’s basic child support obligation and allocation of child care expenses as so modified, the order, is affirmed insofar as appealed from, without costs or disbursements, and the matter is remitted to the Family Court, Nassau County, for a hearing and a new determination thereafter of the mother’s basic child support obligation pursuant to the Child support Standards Act and her share of child care expenses.

A Long Island Family Lawyer said the Support Magistrate’s order denied the father’s petition for an upward modification of the mother’s child support obligation on the grounds that the mother’s original child support obligation of $120 per week, which included child care expenses, was set forth in a stipulation of settlement incorporated but not merged in the parties’ judgment of divorce, no unreasonable and unanticipated change in circumstances had occurred, and the petitioner failed to demonstrate that the child’s needs were not being met. However, that determination was contrary to the express terms of the stipulation, which provided: “any change to the provisions hereof that the parties cannot agree upon may be the subject of further court proceedings.”

In a stipulation of settlement, the parties by agreement may forego the “unanticipated and unreasonable change in circumstances” standard for modification. In any event, subsequent to the parties’ entering into the stipulation and the entry of the judgment of divorce, the child was diagnosed with attention deficit hyperactivity disorder, which constituted an unanticipated change in circumstances.

When the parties entered into the stipulation and when the judgment of divorce incorporating the terms of the stipulation was entered, the child was under four years of age. Her condition did not become apparent until she was in the first grade. The instant case is thus distinguishable from a case law, where the parties’ stipulations had taken into account the diagnosis of attention deficit hyperactivity disorder, and made provisions therefor.

However, the court agrees with the determination of the Family Court that the branch of the petition which addressed college expenses was premature.

In view of the foregoing, the Court remits the matter to the Family Court, Nassau, for a hearing and a new determination thereafter of the mother’s basic child support obligation pursuant to the Child support Standards Act and her share of child care expenses.

In another case, a matrimonial action, The parties were divorced by judgment of the Supreme Court, Nassau County, the plaintiff former wife appeals, as limited by her brief, from so much of an order of the Supreme Court, Nassau County, as denied, without a hearing, that branch of her motion which was for a downward modification of her child support obligation.

The plaintiff former wife was, until October 1994, employed by an aerospace corporation, earning a gross annual income of $22,464. While the plaintiff was so employed, she agreed to pay $140 per week in child support, an agreement which was then incorporated into the divorce judgment. The child support provision contained in the judgment recites that the “combined parental income” of the parties was $22,464 per year, that is, the equivalent of the plaintiff’s salary at her former place of employment. This reflects the situation as it existed in 1993 when, in the words of the judgment, “the income of the defendant former husband was zero”. The plaintiff’s support obligation was later reduced, by agreement, to $100 per week.

In June 1995 the plaintiff made the present application, seeking, inter alia, a reduction in her child support obligations. She averred that she had lost her job in October of 1994, and had not found new work until March of 1995. She claimed that at her new job, she earned only $184 per week. In his opposition papers, the defendant acknowledged that he was receiving $1,027 per month from the Social Security Administration, plus an additional benefit on behalf of the children, and $150 per week in “compensation”. The plaintiff also alleged that at some point the defendant had received a lump sum benefit of approximately $10,000, and that he worked as an electrician “off the books”.

The plaintiff’s loss of her former employment, and the defendant’s acknowledged current receipt of benefits totaling approximately $1,700 per month, when considered in light of the 1993 judgment, which attributed a salary of zero dollars to the defendant, and which required the plaintiff to pay 100% of the parties’ joint child support obligations, should be deemed to constitute an unanticipated and unreasonable change of circumstances sufficient to warrant a hearing on the plaintiff’s application for downward modification.

The parties’ conflicting affidavits reveal the existence of genuine issues of fact with respect to the extent to which the plaintiff’s obligation should be reduced. The Court therefore remits the matter for a hearing.

When parents decided to separate and to dissolve their marital bonds, their children should not suffer by such event. Here in Stephen Bilkis and Associates, our Nassau County Child Support lawyers will make it a point that the children will not be left behind, by ensuring that they will receive support from their parents. For more inquiries on other matters, consult our Nassau County Family attorneys now and receive a reliable advice.

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