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Court Decides Modification of Child Support Issue


In a child support modification proceedings under the Family Court Act, a wife seeks an order of the Court modifying upwards the child support provisions of a December 1973 divorce decree entered between the parties, which provisions were adopted and made part of an enforcement order entered in Court on October 18, 1976.

A New York Family Lawyer said the parties were married in New York in 1958, with eight children being born of the union. By divorce decree, the husband was directed to pay $20.00 per week for each of the eight children, for a total of $160.00 per week. The wife now seeks an increase of the $20.00 per child, per week figure, alleging the increased needs of the children, and the husband’s improved ability to pay.

A New York Custody Lawyer said the t issue is the time from which the required change in circumstances is to be measured. The Court record of the prior proceedings between the parties indicates that orders were made relative to the husband’s support obligation on March 13, 1984, November 16, 1983, May 3, 1982, April 17, 1981, February 4, 1980, November 21, 1978, and October 18, 1976 (the original enforcement order).

A Bronx Family Lawyer said should the wife’s evidence of changed circumstances be limited to matters occurring since the date of the last order, March 13, 1984, (when the support order was decreased, on consent, because one of the children reached 21 years of age), or should the starting point be the last order which addressed the adequacy of support. In the present case, the last substantive order predates the March 13, 1984, order by a number of years. Consequently, the relief sought by the wife hinges on the answer to that question. The Court notes that the accepted rule in support modification cases is that a party must demonstrate a change in circumstances since the prior order was made. Clearly, however–although there are no reported cases directly on point–the phrase prior order may not be invariably interpreted in its literal sense, that is, the last order that was made prior to the current application. In some situations, such an interpretation would limit the demarcation point in calculating a change in circumstances to a time that may have absolutely no bearing on the adequacy of support being paid by the noncustodial parent.

The Court of Appeals has stated that a Court may modify child support after considering both the circumstances as they existed at the time of the prior award and at the time the application is made.

Attention is now directed to the October 18, 1976, order. A Bronx Custody Lawyer said that order was issued in response to the wife’s application for enforcement of the support provisions of the divorce decree, which allegedly had been violated to the extent of $5,520.00 in arrears.

Unlike the other Family Court orders, the enforcement order was substantive as distinct from ministerial in nature. Changed circumstances often are not the result of an abrupt occurrence, such as loss of employment or other dramatic event. It is not unusual for changed circumstances to occur gradually over time. In the instant case, possibly a cause of action for an upward modification did not exist as of October 1976, although some changes in the support variables set forth in Family Court Act were present. If that was the case, it is nonsensical to claim that pre-October 1976 changed circumstances may not be considered with respect to the present application.

The wife had a viable cause of action for an upward modification in October 1976 but elected not to join that cause of action with her enforcement request. That she could have joined the two causes of action in one proceeding is clear. However the fact that she did not and does not constitute a proper predicate to invoke the doctrines of collateral estoppel or res judicata so as to preclude pre-October 1976 evidence. In properly seeking to deny a litigant two days in court, courts must be careful not to deprive him of one. Thus, claim preclusion is tempered by recognition that two or more different and distinct claims or causes of action often arise out of a course of dealing between the same parties, even though it is not, except in refined legal analysis, easy to say that a different gravamen is factually involved. A party’s choice to litigate two such claims or causes of action separately does not bar his assertion of the second claim or cause of action.

A juxtapositioning of present facts against the applicable law of issue preclusion requires the conclusion that the wife’s proof of changed circumstances may not be limited to events postdating October 1976, even if she could have legitimately sought an increase in child support at that time. Enforcement and modification petitions are separate and distinct, both as to the nature of the causes of action, and the required proof. An order of enforcement does not, by implication or otherwise, confirms the sufficiency of the child support order which was supposedly violated.

In sum, Family Court Act authorizes a Family Court Judge to modify a support order based on a subsequent change of circumstances. The order must be modified–and from which the claimed change of circumstances is to be measured–is the last order in which the sufficiency of the amount of support was addressed specifically or by implication via the doctrine of collateral estoppel or res judicata. In the present case, that order is contained in the divorce decree dated December 21, 1973.

The credible evidence adduced at the hearing indicates that three of the eight children are currently being supported by the husband at the rate of $20.00 per week for both age 16 and now 18. The $20.00 per week support was ordered over ten years ago. The wife’s current income is limited to the $60.00 per week which she receives from her two emancipated children living with her. The husband, however, currently earns approximately $35,000.00 per year as a police officer. At the time of the divorce, he earned approximately $800.00 per month net.

The wife has demonstrated specific increases in the costs of maintaining her three children relative to items such as food, medical care, clothing and household maintenance since the prior order.

Considering the husband’s increased financial ability, the Court concludes that an upward modification of child support in the sum of $35.00 per week per child for a total of $105.00 per week is warranted. The aforesaid order is retroactive to the date of filing of the petition, making arrears in the sum of $1,655.00 as of February 27, 1985. Accordingly, the order shall include payment of those arrears at the rate of $10.00 per week, making the total support order $115.00 per week. That amount shall be paid through the County Support Collection Unit, with the initial $115.00 payment being due on the first Friday after service upon the husband of the order to be entered herein. The husband shall also maintain medical insurance for the three children in accord with his employer’s plan.

Should the husband fail to comply with this order so that at any given time there are two or more payments outstanding, then a payroll deduction order, pursuant to Personal Property Law shall issue.

As kids grow, their needs increase too. The money that you spend in paying for one thing year ago would never be enough for its present cost. If you want your partner to reconsider his financial support, ask the help of the Suffolk County Child Support Lawyer. You may also ask for the legal opinion of a Suffolk County Spousal Support Attorney together with the Suffolk County Family Lawyer from Stephen Bilkis and Associates.

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