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Father Requests Downward Modification of Child Support

A New York Family Lawyer said that, in an action for a divorce and ancillary relief, the defendant husband appeals, as limited by his brief, from stated portions of a judgment of the Supreme Court, Nassau County, entered March 17, 1993, which, after a nonjury trial, inter alia, (1) directed him to pay the plaintiff wife maintenance in the amount of $2,000 per month for a period of nine years, (2) directed him to pay child support in the amount of $3,097 per month, and (3) awarded the wife a money judgment of $69,043 insofar as it included an award for necessaries, and the plaintiff wife cross-appeals from so much of the same judgment as awarded her a money judgment in the amount of only $69,043.

A New York Custody Lawyer said that, in another child support proceeding pursuant to Family Court Act article 4, the father appeals from an order of the Family Court, Nassau County, dated August 10, 2009, which denied his objections to an order of the same court dated June 9, 2009, which, after a hearing, denied his petition for a downward modification of his child support obligation.

A Suffolk County Family Lawyer said the issues in this case are whether the court erred in decreeing the defendant husband to pay the plaintiff wife maintenance in the amount of $2,000 per month for a period of nine years; directed him to pay child support in the amount of $3,097 per month; and awarded the wife a money judgment of $69,043 insofar as it included an award for necessaries; and whether defendant husband is entitled to modification of his child support obligation.

A Suffolk County Custody Lawyer said the court in deciding the case said that, in calculating the amount of the child support award, pursuant to the provisions of the Child Support Standards Act (see, Family Ct Act § 413; Domestic Relations Law § 240), the Supreme Court, Nassau County, opted to apply the child support percentage (in this case 25%) to the combined parental income over $80,000. While the statute explicitly vests discretion in the court to apply the stated percentage to income over $80,000, rather than apply the factors set forth in Family Court Act § 413(1)(f), there must be some “record articulation of the reasons for the court’s choice to facilitate review”. Inasmuch as the record is bereft of the court’s reasons for its choice, the court finds it appropriate to remit the matter to the Supreme Court, Nassau County, to enable it to set forth the factors it considered and the reasons for its determination. No other issues are reached at this juncture.

A court may modify the child support provisions of a separation agreement incorporated but not merged into a judgment of divorce when a party has alleged and proven an unanticipated change in circumstances since entry of the judgment. The Family Court erred in concluding that the father’s loss of income for reasons beyond his control, increased expenses due to an uninsured hospital stay, and the change in the custody arrangement from the mother having primary residential custody of the parties’ two children to split residential custody, was not an unanticipated change of circumstances creating the need for modification of his child support obligation. Accordingly, the matter must be remitted to the Family Court, Nassau County, for a new hearing to determine the father’s reduced child support obligation.

Accordingly, the court held that the matter is remitted to the Supreme Court, Nassau County, to set forth the factors considered and the reasons for its determination as to child support and the appeal is held in abeyance in the interim. The Supreme Court, Nassau County, is to file its report with all convenient speed. The court further ordered that the order dated August 10, 2009, is reversed, on the law, with costs, the objections are granted, the order dated June 9, 2009, is vacated, and the matter is remitted to the Family Court, Nassau County, for further proceedings consistent herewith.

The court may modify the child support provisions of a separation agreement incorporated but not merged into a judgment of divorce when a party has alleged and proven an unanticipated change in circumstances since entry of the judgment. If you wish to modify the amount of your obligated child support, seek the representation of a Nassau Child Support Attorney and Nassau Family Attorney at Stephen Bilkis and Associates. Call us.

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