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Wife Seeks Sanctions Against Husband for Frivolous Behavior


A New York Familly Lawyer said the couple was married and has seven children, one of whom is emancipated. The respondent husband, a physician, incorporated his successful plastic surgery practice as a subchapter corporation, for which he is the sole shareholder. The couple separated and a temporary order of custody was issued in Family Court by which they were to spend equal amounts of time with each of their children, and petitioner wife petitioned for child and spousal support. In April 1999, Family Court issued a temporary support order requiring the husband to pay—on a monthly basis—child support of $10,000 and spousal support of $1,000.

In May 1999, the wife filed for divorce and all issues regarding child support were consolidated in Supreme Court. Subsequently, the husband successfully moved to dismiss the divorce action. However, in its dismissal order the court also granted, among other things, a money judgment against the husband for arrearages in child and spousal support, continued the temporary support order and referred matters regarding child support back to Family Court. A New York Custody Lawyer said that on the husband’s appeal of those latter portions of the dismissal order, the Court left intact the husband’s obligations under the temporary support order including arrearages, and referred final issues of child support to Family Court.

In January 2004, a hearing was commenced in Family Court on the child support issues, resulting in an order by the Support Magistrate which, based on the disparate incomes of the parties, required the husband to pay 80% of all of the children’s expenses and required the wife to pay 20%. The Support Magistrate also ordered the husband to pay monthly child support of $4,491 and monthly spousal support of $1,500, and denied the requests of both parties for counsel fees; finding that the husband’s violation of the temporary support order was not willful, the court denied the wife’s petition to hold him in contempt. Both parties then filed objections to the Support Magistrate’s order, although only the wife specifically objected to the denial of counsel fees.

A Staten Island Family Lawyer said on a November 2005 order, Family Court upheld, among other things, the Support Magistrate’s findings regarding the parties’ income and the amount of support that the husband should pay. The court also found, however, that the parties’ requests for counsel fees had been erroneously denied as those issues had not been thoroughly addressed at the trial; after its own evidentiary hearing, the court issued its March 2006 order which determined that while the wife had incurred in excess of $40,000 in counsel fees, only $10,000 was justified as fair and reasonable, of which the husband should pay $8,000, a pro-rated 80% of the court’s assessment.

The husband appealed from Family Court’s November 2005 order and the wife cross-appealed. The wife also appealed from Family Court’s March 2006 order, claiming that the award of counsel fees was inadequate and that the husband’s counsel should have been sanctioned for frivolous behavior. The Court consolidated all of the pending appeals.

The Support Magistrate acted within his discretion in focusing on the 2003 federal tax returns of the parties and the corporation, as they were the most recent at the time of the hearing. Further, each item of income attributed to the husband for child support purposes is supported in the record. It is clear, however, that—in anticipation of an eventual full plenary hearing on child support—the husband made a number of financial decisions which effectively reduced the amount of the corporate non-employment income received by him in 2003; the most glaring were his December 2003 decisions to purchase a new corporate vehicle for his personal use and to upgrade his office computer system thereby reducing the 2003 excess corporate profit—payable as income to him as sole shareholder of the corporation.

A New York Child Custody Lawyer said as to the wife’s 2003 child support income, the amount fixed by the Support Magistrate of $48,493 is amply supported in the record. The Support Magistrate properly deducted expenses from the wife’s stated real estate business income and reduced her rental income by her mortgage payments and other carrying charges.

Based upon the foregoing, the husband’s basic child support obligation on the first $80,000 of parental income is $1,936.66 per month. As to the combined parental income in excess of $80,000, Family Ct Act provides that the court shall establish the child support obligation to that excess by utilizing the paragraph factors, by applying the statutory percentage to the full amount, or by a combination of the two. The Support Magistrate focused mainly on the great disparity between the parents’ respective financial resources, their future earning potential and the children’s special educational and emotional needs, together with the need to protect the children from a significant reduction in their standard of living. The Support Magistrate was not required to afford greater weight to the husband’s visitation expenses as only the three youngest children regularly exercise visitation; moreover, his added expenses for such visitation were not shown to be extraordinary nor had the concomitant expenses of the wife been substantially reduced by the husband’s involvement in the children’s lives.

While it is clear that an award of child support limited to the first $80,000 of parental income would be grossly inadequate in the case, upon full review of the factors as analyzed by the Support Magistrate, even with due consideration given to the conceded household needs of the wife as an additional factor, a child support award based upon the application of the child support percentage to the full amount of the combined parental income, as recalculated would be inappropriate. Accordingly, based upon consideration of all the factors, the husband’s share of the basic child support obligation per month, based upon a reduction in the husband’s share of the combined parental income is established. Additionally, upon the date that each child reaches the age of 21 or is otherwise emancipated, the adjusted amount of child support owed by the husband shall be determined based upon the application of the statutory child support percentages to the sum of $200,000 as established above.

In light of the adjustments made herein, the husband shall now be responsible for 83% and the wife 17% of each of the support add-ons as determined by the Support Magistrate, except that as the cost of health coverage increases, the wife’s contribution towards health coverage shall increase in proportion to the rising cost so that her share continually constitutes 17%.

Turning next to the husband’s challenge to the Support Magistrate’s award of spousal support, the Support Magistrate reviewed the statutory factors in detail and found that, despite the wife’s Master’s degree in nursing and that she had recently developed a new career—albeit in the often volatile and erratic real estate business—she would not be able to meet her own needs in terms of achieving the extremely high standard of living established during the marriage. During the time leading up to the separation—to the detriment of a nursing career and her ability to become self-sufficient—the wife devoted her time and energy to the needs of the home and to their seven children. The Support Magistrate’s decision to award spousal support was an abuse of discretion. However, in application of the statutory factors to the facts in the case, the reduced sum of $1,200 per month is a more appropriate amount, given the wife’s conceded current needs and her income earning ability.

The County Support Collection Unit shall adjust each of its child and spousal support calculations in light of the foregoing and advise the parties and Family Court of the adjusted amount of the total combined arrears; counsel for the wife shall promptly provide the Support Collection Unit with a copy of the decision.

Children’s financial support is most often the cause of legal dispute among couples who separate. If your partner is neglecting his share of obligation to your children, see a New York City Child Support Attorney together with a New York Family Lawyer. A NYC Divorce Attorney from Stephen Bilkis and Associates can also represent you in the courtroom.

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