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Father Appeals Increase in Child Support


A New York Family Lawyer said that, in a proceeding for an upward modification of an award of child support, the father appeals from an order of the Family Court, Suffolk County, entered December 12, 1990, which denied his objections to an order of the same court, entered September 5, 1990, which, after a hearing, increased his weekly child support obligation from the sum of $25 to the sum of $150 per week for his daughter Shannon retroactive to August 18, 1989, and directed him to pay an additional $25 per week to satisfy arrears. The parties were married in December 1972 and their union produced two children, a daughter, born June 9, 1973, and a son, born August 3, 1977. In September 1979 the parties entered into a separation agreement that provided, inter alia, that the mother would receive custody of the children, and that the father would pay weekly child support of $25 per child.

A New York Child Custody Lawyer said that, in November 1979 a judgment of divorce was entered incorporating the provisions of the separation agreement which survived and did not merge in the judgment. In 1979 at the time of the divorce, the children were six and two years old, respectively. The father’s gross earnings were approximately $16,800 per year. The mother was unemployed. Alleging a change in circumstances and that the needs of both of the children were not met by the father’s contribution to their support, the mother sought an upward modification of the child support set 10 years earlier. Subsequent to the filing of the mother’s petition, the parties’ son moved to his father’s residence.

A New York City Family Lawyer said that, in support of her petition which then sought increased child support for the parties’ daughter, the mother testified to increased expenses due to the daughter’s growing and different needs, the increased cost of living, as well as substantial improvements in the financial circumstances of the father, who was then earning in excess of $70,000 per year. Based upon the testimony and the evidence, the Hearing Examiner determined that a change in circumstances had occurred warranting both an increase in the father’s support obligation for their daughter, and an obligation on the part of the mother (now a noncustodial parent to the parties’ son) to contribute to his support. Having found the requisite change in circumstances, the Hearing Examiner appropriately applied the Child Support Guidelines formula to both parties’ support obligations. Although the mother was unemployed at the time of the proceeding, the hearing examiner imputed income to her in the sum of $16,000, based upon her prior employment experience. The net effect of the application of the formula to the income of both parties resulted in an increased obligation on the part of the father for his daughter’s support requiring him to pay $150 per week.

The issue in this case is whether the increases on child support obligation imposed on the father is justified.

The court sees no reason to disturb the findings of fact made by the Hearing Examiner, who was in the best position to hear and evaluate the evidence as well as the credibility of the witnesses. The mother has met her burden of establishing the increased expenses and needs of the child and the other spouse’s ability to pay, thereby justifying modification of the original support obligation. Moreover, we find that the Child Support Guidelines, and the income computations made pursuant thereto, were correctly applied.

The dissenters correctly note that the marital residence was transferred to the mother at the time of the parties’ separation. However, they failed to note that the father’s equity was then only $9,000, and the house was in foreclosure. The conveyance of this property therefore fails to justify an inference that the mother accepted a low child support obligation intended to last through the children’s majority regardless of any change in circumstances. More likely, the rationale of the initial child support obligation is the fact that the father was then earning only $16,800 per year and $25 per week support for each of the parties’ two children then constituted about 16% of his gross income and probably appeared reasonable to the parties. (The $25 per week obligation for the parties’ daughter at the time of these proceedings constitutes less than 2% of his annual income.)

A New York City Child Custody Lawyer said the dissenting colleagues would reverse the order appealed from due to the mother’s failure to specify those precise expenses incurred by the parties’ 17-year-old daughter which, under the facts of this case, were not met by the father’s $25 per week support contribution and the mother’s nonexistent income. Although the dissent attempts to trivialize the mother’s case by referring to her “lament” that she would like to provide her daughter with more than three sweaters per year, this ignores the obvious fact that this growing child’s needs simply cannot be met on a weekly contribution of $25. We are not required to don blinders to the uncontroverted circumstances underlying this case nor must a custodial parent itemize every single expense that cannot be met to prove her entitlement to an upward modification where the amount of support provided by the noncustodial parent is as paltry as that in the instant case and where that parent’s fourfold increased income enables him or her to pay more adequate support. Although the Hearing Examiner may have overstated the quantum of proof the mother presented in establishing the child’s increased needs, the disposition herein is adequately supported by the record and the law. We are not precluded from drawing the sole reasonable inference from the record, to wit, that daughter’s needs were not being met with the de minimis support contribution from her father.

Moreover, reversal in this case would disregard entirely the clearly expressed legislative intent to address inadequacies and inconsistencies of both initial and modified child support awards expressed in the Family Support Act of 1988, and the Child Support Standards Act of 1989.

There is no dispute that the party moving to modify the child support obligations set forth in a separation agreement bears both the burden of coming forward and the burden of persuasion on the issue. The Court of Appeals has set forth two standards of proof in modification proceedings, and the question of which standard should be applied in a given case depends on the circumstances presented therein.

The mother in this case has failed to meet her burden for an upward modification under either of the foregoing standards. The record of the proceedings before the Hearing Examiner is rather sparse. At the time of the separation of the parties, the father conveyed his interest in the marital residence in Nesconset to the mother. Thereafter, the mother re-married and they lived in the Nesconset house. In 1986 the couple sold this house for $118,000, from which they netted $87,000. The couple then bought a larger home in Miller Place for $135,000, utilizing the proceeds from this sale and a $23,000 inheritance of the mother.

The only financial evidence presented at the hearing consisted of a comparative statement prepared by the mother in which she claims that her weekly needs in 1979 were $262.07, while her weekly expenses in 1989 were $905.01. It is not clear how many people were involved in the family unit in 1979. However, in 1989, the family consisted of six people, including children born to the mother and husband. The mother testified that $57.39 of the 1979 weekly figure was allocable to the daughter, but she could not explain how she arrived at this figure. At no time did she ever allocate any specific portion of the 1989 expenses to the daughter. Hence, the mother’s sole economic argument is that it cost more to raise Shannon in 1989 than in 1979 because of inflation and the fact that she is growing up. These arguments have been expressly found inadequate to support upward modifications in child support in countless cases. On the contrary, upward modifications have been approved in those situations where, unlike here, the movants set forth specific increased expenses.

There is also no evidence in this record establishing that the mother has satisfied the Brescia standard (i.e., that she has demonstrated that the daughter needs were not being met). The sole evidence presented on this matter is the mother’s lament that she would like to buy her more than three sweaters a year. Such a gratuitous remark hardly establishes that the daughter’s clothing needs are not being adequately addressed. The majority opines that by referring to this bit of testimony, we are attempting to “trivialize the mother’s case”. To the contrary, we are not attempting to minimize or trivialize her case at all; we are setting forth the entire case presented by the mother as to any unmet needs of the child. It simply is inadequate under the standards established in a long series of decisions. The burden of proof on a parent seeking an upward modification of child support is not onerous, but it does exist and it must be met. In no prior case has it ever been held that a certain sum is inadequate child support as a matter of law without any factual support.

The paucity of evidence on this issue may well be attributable to the Hearing Examiner’s incorrect view of the law in this area. Indeed, at one point in the hearing, the Hearing Examiner erroneously opined that the mother did not have to show any change in circumstances between 1979 and 1990 because “it is a given that there has been a change on the part of the child and that is sufficient under “. He further stated that the legislative findings of the Child Support Standards Act have overruled all of the established decisional law in this area, so that if a prior award of child support is below that which would be required under the Child Support Guidelines, that discrepancy alone is proof of a change of circumstances. In short, the modification of support in this case is founded upon the erroneous assumption that all previous awards less than those called for by the Guidelines must be modified to reflect the Guideline amount. However, this bootstrapping approach is expressly prohibited by the Child Support Standards Act itself.

The majority seems to concede this fundamental error by the Hearing Examiner, but then states that notwithstanding this totally erroneous standard, the disposition is “fully supported by the record and the law”. The majority decision, like the hearing record, is totally devoid of facts indicating that the daughter’s needs are not being met. While it is true that we may make inferences from the record, those inferences must be based on facts in the record.

Unfortunately, there are no facts in this record to support the claimed change in circumstances. It appears the majority is applying the same mistaken interpretation of the law the Hearing Examiner made in an effort to justify an a priori decision that the father’s child support contribution was de minimus and must be increased.

Accordingly, the court held that, since the mother has failed to establish either that there was an unforeseen change of circumstances or that the daughter’s needs are not being met, the father’s objections to the Hearing Examiner’s order should have been sustained and the petition dismissed.

If you wish to modify the your child support obligation, you will need the representation of a Suffolk Divorce Attorney and/or Suffolk Child Support Attorney at Stephen Bilkis and Associates in order to file the appropriate appeal. Call us.

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