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Matter of Nimkoff v. Nimkoff


2017 NY Slip Op. 00984

February 8, 2017


This is an appeal from a family court order dated 4/12/17. The Order denied objection made by the appellant father, and dismissed his request for a decrease in child support for a lack of subject matter jurisdiction.

This court orders the decision reversed. The court granted the appellant’s objections. The matter was remanded to family court.

The parties were divorced via a judgment of the Supreme Court on 5/29/14. In a prior court order (10-3-2013). The court set the father’s child support at $695 and add on an expense of 36% for additional expenses. That portion of the Order was affirmed.

In June 2015, the father sought a reduction in child support based on a change in both parent’s income of more than 15%. (Family Court Act 451 [3][a][b][ii]. This Order on 10/3/13 stated that the appellant’s income had decreased while the mother’s had increased. The mother claimed res judicata, collateral estoppel and dismissal on the grounds of documenting evidence and failure to state a cause of action. On 1/6/16 the petition was dismissed with prejudice. The court concluded that it lacked subject matter jurisdiction, stating that it wasn’t a final child support order. The appellant father objected. On April 12,2016 the court denied the father’s objections, stating that the previous order wasn’t the final order.

The court said that the appellant should have sought to modify the divorce judgment rather than the order. The father appealed this decision.

The family court considered as having “limited jurisdiction” and is able only to exercise powers granted by the state constitution or by statute (NY Constitution Article VI, Section 13; family court act 115 [a][ii]451, 461 [b][ii], Matter of H.M. v E.T., 14 NY 521, 526; Matter of Chemung County of Support Collection Unit v. Greenfield 109 AD 3d 4). As in this instance, the Supreme Court set child support in the divorce judgment and doesn’t have exclusive jurisdiction to change an award. The court has authority to review an application to modify child support (Matter of O’Dell v. O’Dell, 104 AD3d 770, Family Court Act 461 [b][ii].

In New York, spousal support is also referred to as maintenance and alimony. Generally, spousal support is created to financially support the lesser earning spouse. The judge may award temporary support, and when the divorce is concluded the spousal support order will be made permanent.

The judge will decide support based on the other spouse’s ability to provide assistance. The factor that the judge will consider include the length of marriage, the health and age of the spouse, the ability of the receiving spouse to become self-supporting. These provisions are outlined in New York Statute 236.

While a temporary order lasts the duration of the case, a permanent order lasts a specified amount of time, or until the death or either spouse.

New York uses a support calculator to figure temporary support. For temporary support, the calculator is based on income only.

In 2015, the legislature passed Bill 7645-2015 that addresses the duration and the amount of spousal support. The new law however can’t be used to alter existing agreements.

The law says that when distributing the marital assets, the court no longer is to consider the value of the spouse’s increased earning capacity as an asset.

The cap in a payors income to be used for calculation purposes is $175,000 (lowered from $543,000)

There are also changes to two different child support calculation formulas that can be used. The duration of the support takes into account the duration of the marriage-generally 15%-30% the length of the marriage.

The bill was created to try and achieve more balance with maintenance that sometimes results in unfair outcomes.

Divorce is a stressful, emotional time. It is important to seek legal guidance to ensure that your interests are protected. Speak to the experienced lawyers as Stephen Bilkis and Associates for guidance and a free consultation. They have offices to serve you throughout the New York area, including locations in Manhattan, the Bronx, Brooklyn, Queens, Staten Island, Nassau County, Suffolk Count and Westchester County. Call today for a free consultation at 1-800-NYNYLAW.



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