2017 NY Slip Op 03549
May 3, 2017
The plaintiff appeals from two separate Orders from Nassau County Supreme Court. One Order (5/5/14) granted the plaintiff’s motion to reduce child support in the amount already paid for college expenses and asks for a resolution as to whether the income should be attributed to either party to determine their respective financial responsibility for their child’s college expenses. An Order from 5/15/17 denied the defendant’s cross motion for the reduction of child support and also to declare the child emancipated, as well as an award for attorney’s fees.
The Order from 5/5/14 is affirmed. The Order from 5/15/17 is modified by deleting the award of attorney fees in the amount of $5,000 and otherwise affirming it.
The parties entered into a stipulated settlement that was incorporated in the stipulation. In the agreement, the mother was awarded primary custody of the child and the father was ordered to pay child support. The stipulation provided that each party would contribute to child support in proportion to their incomes and by the as set forth by the Child Support Standards Act.
The father moved for a reduction of child support. The mother filed a cross motion regarding child support arrears. The Supreme Court ordered the father to pay 50% of the cost of college pending a final decision by the court regarding the cost to the respective parties.
In another motion, the father moved for a reduction for child support. He stated that income should be imputed to the mother to determine their prorata shares of the costs of college. The court denied much of the father’s motion. The court granted so much of the mother’s motion requesting $5,000 in attorney’s fees.
The Supreme Court denied parts of the father’s motion requesting a reduction in child support. The court said that in order to achieve a reduction in child support, prior to 2010 amendments to section 451 of the Family Court Act, the parties must prove that there has been a significant change in circumstances. The fact that the child started college isn’t sufficient (Trester v. Trester 92AD3d 940, 950, see Groheman v Groheman 251 AD2d 544).
The father also didn’t prove that the child was emancipated, nor did he prove that he was entitled to a reduction of support because of this issue. In NY, the court says that the parents are financially responsible for their child until they reach 21 years old (Matter of Cellamare v Lakeman 36 AD3d 906). The court said that a child is considered emancipated where the child becomes economically independent of their parents (Alice C Bernard GC 193 AD2d 105, Cellamare v Lakeman 26 AD3d 906.
In the stipulation, it was stated that the emancipation would occur when the child moved away from home for 50 consecutive days. The party asserting emancipation has the burden of proof (Matter of French v Gordon 103 AD3d 722, Brinkselle v Widman 137 AD3d 444, Diaz v Gonzales 115 AD3d 904).
Generally, going to court for a downward modification of child support was an uphill battle. Over time, the state of New York has loosened the policies and procedures for child support making it simpler. The law was updated in 2010, and now a) the parties are allowed to modify and agreement that was agreed to between themselves, 2) They can’t ask for a modification unless 3 years have passed from the original order, c) when either party’s income has shifted more than 15%. Even so, a downward modification is viewed somewhat negatively and difficult to obtain.
The party seeking the change must prove that an income change wasn’t voluntary, and they are adequately employed based on their education, experience and capabilities. If you have a child for instance, you can’t take off time to change careers and be re-educated in a new field.
Child support issues can be stressful on all parties involved. If you are involved in a support matter, it is important to seek legal counsel as soon as possible to ensure that your rights are protected. Speak to Stephen Bilkis and Associates for guidance and a free consultation. They have offices to serve you in Manhattan, the Bronx, Brooklyn, Queens, Staten Island, Nassau County, Suffolk County and Westchester County. Call them today at 1-800-NYNYLAW.