Silverman v Silverman
Annotate this CaseDecided on May 20, 2005
Supreme Court, Nassau County
Ilajayne Silverman, Plaintiff,
against
Lawrence H. Silverman, Defendant.
98-001198
Joseph P. Spinola, J.
In this post-judgment motion, defendant/ex-husband, moves for an Order terminating his child support obligation and directing the plaintiff to pay to defendant child support pursuant to the Child Support Standards Act, and an Order pursuant to CPLR §2221, for leave to reargue the decision of the Hon. Anthony Marano dated June 25, 2003 and counsel fees.
Plaintiff/wife cross-moves for an Order pursuant to CPLR §2221 transferring the defendant's motion for reargument to the Hon. Anthony Marano, an Order awarding child support arrears in a sum of not less than $28,700.00, an Order surcharging the defendant in the sum of $4,979.25 for making an improper expenditure by utilizing the college fund of the parties' daughter, CS and directing the defendant to pay that sum towards CS's college education, counsel fees and sanctions.
Relevant Procedural and Factual History
The underlying matrimonial matter was settled via a Stipulation of Settlement in open Court before the Hon. Kenneth A. Davis on January 12, 2000. Same was incorporated but not merged in the Judgment of Divorce dated November 1, 2000.
In May 2003, defendant moved, inter alia, post-judgment, before the Hon. Anthony Marano, for an Order modifying his child support obligation. Defendant asserted that his child support obligation should be terminated retroactive to July 1, 2002, the date both parties' children left plaintiff's residence and began residing with him. Defendant further maintained that plaintiff should be compelled to pay defendant child support as the non-custodial parent retroactive to July 1, 2002.
The Court, in its decision dated June 25, 2003, denied defendant's application to modify his child support obligations. Same was denied without prejudice to any future application as defendant failed to annex a Statement of Net Worth to his application as required by NYCRR§202.16(k). More importantly, the Court specifically noted that any modification in defendant's child support obligation could not be retroactive to the date defendant maintained the [*2]parties' children began residing with him, to wit July 1, 2002. Rather, the Court noted, citing Galotti v. Galotti, 251 AD2d 285, any modification could only be retroactive to the date of a proper application for such relief.
In May 2004, defendant brought the instant motion for an Order terminating his child support obligation and directing the plaintiff to pay to defendant child support pursuant to the Child Support Standards Act, and an Order pursuant to CPLR §2221, for leave to reargue the decision of the Hon. Anthony Marano dated June 25, 2003 and counsel fees.
On March 9, 2005, pursuant to the dictates of CPLR§2221(a), the undersigned Justice referred the within motion to the Hon. Anthony Marano to the extent same seeks reargument. Defendants' motion to reargue the decision of the Hon. Anthony Marano dated June 25, 2003 was denied in its entirety as delineated in Justice Marano's decision dated March 14, 2005. The balance of defendant's motion was referred back to the undersigned Justice.
Legal Analysis and Decision
I. Defendant's Motion
The remaining outstanding issues with respect to defendant's motion for this Court to determine are as follows: 1) Whether or not defendant's child support obligation should be terminated as a result of the undisputed fact that the parties' minor children left plaintiff's custody and began residing with defendant in July 2002 and have continued to reside with him; 2) Whether, as a result of the foregoing, plaintiff should be compelled to pay defendant child support as the non-custodial parent, and 3) counsel fees.
It is undisputed that the parties' two children, now 25 and 20, left the plaintiff's residence in or about July 2002 to reside with the defendant and have been residing continually with the defendant since that time. As such, defendant asserts that his monthly child support obligation should be terminated and plaintiff directed to pay him child support as the non-custodial parent.
However, it is plaintiff's position that defendant is not entitled to any relief from his child support obligation and that she is not required to pay to him any child support despite the fact that the parties children have resided with the defendant since July 2002 and continue to do so. In support of this position, plaintiff directs the Court to the parties' stipulation of settlement made in open Court before the Hon. Kenneth A. Davis on January 12, 2000. Same provides, in relevant part: "...child support. The...child support shall continue until the...child is emancipated. Emancipation is defined as full-time employment, marriage, residence away from the mother..." (emphasis added)
Plaintiff asserts that, since the parties children left her residence in or about July 2002 to [*3]reside with the defendant and have been residing continually with the defendant since that time, they are maintaining a "residence away from the mother" which constitutes an emancipation event under the parties' stipulation of settlement. As such, plaintiff proffers that the minor child is not entitled to any child support from her or any other source.
However, plaintiff's interpretation of the terminology "residence away from the mother" is obtuse. Clearly, within the context of a matrimonial matter, the terminology "residence away from the mother," when referring to an emancipating event, does not entail a simple change in residence to the father. Such an interpretation is counterintuitive and against public policy as same would empower parents to manipulate circumstances so as vitiate a child's entitlement to support without regard to a child's ability to be fully self-supporting and economically independent from the parents. Moreover, a change in residence alone from one parent to another does not constitute an adequate basis for a finding of emancipation. (Gittleman v. Gittleman, 81 AD2d 632 [2d Dept. 1981])(emphasis added). In the instant matter, plaintiff's only basis for her claim that the parties minor child is emancipated is the change in the child's residence from the plaintiff to the defendant. The record is devoid of any evidence or even any assertion that the parties minor child has the ability to be fully self-supporting and economically independent from the parents, is married, is enlisted in the military, has attained the age of twenty-one, has been adopted by another family, has abandoned the plaintiff or is dead.
The duty to support children is a fundamental obligation owed by parents to their children. Mothers, no less than fathers have a duty to support their children, and a child's entitlement to support cannot be waived or bargained away. (DRL§32; Coger v. Cusamano, 191AD2d 493 [2d Dept. 1993]). Any termination of that statutory obligation must be firmly grounded in various case law doctrines which terminate child support liability, as a matter of law, upon certain occurrences. As noted above, no such occurrences have taken place, and this Court refuses to read into the parties' settlement agreement a restrictive definition of emancipation. Plaintiff's attempt to have this Court interpret the terminology "residence away from the mother," as an emancipating event extinguishing child support obligations amounts to no more than a specious attempt to avoid such an obligation. Accordingly,
Defendant's motion is granted to the extent that his child support is terminated. However, as delineated in Justice Marano's decision dated June 25, 2003, such a termination may only be as of the date the defendant applied for the relief.[FN1] (Palladino v. Palladino, 264 AD2d 441 [2d Dept. 1999]; Rubenstein v. Yosef, 178 AD2d 359 [1st Dept. 1991]). In the instant matter, defendant's child support obligation is deemed terminated as of May 13, 2004, the date of the instant properly made application. As such, it is hereby
ORDERED that plaintiff, whose 2003 tax return and W-2 Statement indicates an income of $22,620.00, pay $68.65 per week to defendant in child support. This award is retroactive to [*4]the original date of the within application, to wit: May 13, 2004. Retroactive sums due by reason of this award shall be paid at a rate of $100.00 per week in addition to the sums awarded until all arrears have been satisfied.
Defendant's motion is denied in all other respects.
II. Plaintiff's Cross-Motion
Plaintiff/wife cross-moves for an Order pursuant to CPLR §2221 transferring the defendant's motion for reargument to the Hon. Anthony Marano, an Order awarding child support arrears in a sum of not less than $28,700.00, an Order surcharging the defendant in the sum of $4,979.25 for making an improper expenditure in that amount by utilizing a "college fund" of the parties' daughter, CS, and directing the defendant to pay that sum towards CS's college education, counsel fees and sanctions.
The first branch of plaintiff's cross-motion is clearly moot. The remaining outstanding issues with respect to plaintiff's cross-motion for this Court to determine are as follows: 1) Whether or not plaintiff is due child support arrears and, if so, a determination of the sum due; 2) Whether defendant should be "surcharged" for utilizing sums in the amount of $4,979.20 from the parties' daughter's "college fund" to purchase her an automobile and directed to pay that sum towards the parties daughter, CS's college education; 3) counsel fees and 4) sanctions.
The defendant concedes that he ceased paying child support to plaintiff when the parties' children left plaintiff's residence and began residing with him in July 2002. However, the law is well settled that a noncustodial parent may not unilaterally cease paying support. Rather, a non-custodial parent is required to apply to the Court for a modification of the child support obligation and is responsible for any arrears which accrued before he made the proper application. (Galotti v. Galotti, 251 AD2d 285 [2d Dept. 1998](father not entitled to reduction of child support arrears retroactively from the date the parties' children began residing with him; father was required to apply for a modification of his child support obligation, and was responsible for any arrears that accrued before he made the application); Risley v. Risley, 173 Ad2d 1103 [3rd Dept 1991](custodial parent was entitled to arrears from the time the noncustodial parent unilaterally reduced child support because of the child's move to his residence). As such, defendant in the instant matter is obligated to pay child support arrears from July 2002 until the original date of the within application, to wit: May 13, 2004.
In July 2002, when the parties' two children, JS and CS, left plaintiff's residence and began residing with the defendant, JS, the oldest child was 22 and therefore already emancipated by operation of law. Therefore, as clearly and unambiguously delineated in the stipulation of settlement made in open Court before the Hon. Kenneth A. Davis on January 12, 2000 which was incorporated but not merged in the Judgment of Divorce dated November 1, 2000, defendant's child support obligation was $750.00 per month. As such, defendant's child support arrears are $16,825.00 (22 months and 13 days at $750.00 per month). Contrary to plaintiff's assertion, [*5]plaintiff's arrears do not total $28,700.00. Despite the clear and unambiguous language of the parties settlement and judgement of divorce, plaintiff has surreptitiously calculated the defendant's child support arrears based on the combined child support and maintenance obligation rather that the child support obligation alone. There is no present application before this Court nor any assertion that defendant is in arrears with respect to his maintenance obligation. Accordingly, it is hereby
ORDERED that defendant, within one hundred eighty (180) days of the date hereof, shall place the child support arrears in the sum of $16,825.00 in a bank account in trust for CS Silverman until she reaches the age of twenty-one (21) at which time CS may withdraw said funds. Defendant shall name himself as the trustee of this account but he may not withdraw any funds from the account or take any actions with respect to this account without leave of this Court. However, the Court will liberally consider legitimate requests by defendant to invade this account for purposes directly related to support of the parties' minor child. The Court notes it has expressly determined not to make the child support arrears payable to the plaintiff. To make such an award would unjustly enrich the plaintiff since, at the time the arrears accrued, the parties' child to whom the obligation was owed was residing with the defendant and therefore, the child was never actually deprived of support. As such, the plaintiff incurred no expenses with respect to supporting the minor child. Nevertheless, the Court is constrained by the current state of the law necessitating the above award.
Plaintiff next asserts that defendant should be "surcharged" for utilizing $4,979.25 from an account under defendant's proper control which was earmarked, pursuant to the parties stipulation of settlement, to pay college expenses for the parties' daughter, CS. The stipulation of settlement notes that plaintiff and defendant maintained funds in separate accounts in their names for the benefit of their daughters. Substantially more funds were located in the accounts maintained by the plaintiff than those maintained by the defendant. The stipulation provides that the funds in the accounts under plaintiff's control would be utilized first in priority for the children's college expenses. Once exhausted, the funds in the accounts maintained by the defendant would then be drawn upon. Defendant concedes he utilized $4,979.25 from the aforementioned account maintained by him for the benefit of CS to purchase an automobile for her. It is plaintiff's position that such an expense was not only improperly allocated as a college related expense but that defendant was prohibited by the terms of the stipulation of settlement from making such an expense since she had not yet exhausted the funds in the accounts maintained by her for the benefit of the children.
However, the language in the stipulation of settlement with respect to the priority of the use of the aforementioned accounts is stated simply as a matter of ministerial economy and not as a condition precedent as plaintiff proffers. Moreover, the Court is not convinced that the purchase of an automobile for CS was an improper expenditure. The parties' child has and will certainly gain great benefits to both her collegiate career and to her personal and social growth via use of the automobile. Plaintiff provides absolutely no rational reason why defendant should be penalized for making such an expenditure nor does plaintiff demonstrate how this expenditure [*6]negatively impacted the parties' child in any manner economically or otherwise. Accordingly, that portion of plaintiff's cross-motion seeking an Order surcharging the defendant in the sum of $4,979.25 for making an "improper" expenditure by utilizing a "college fund" of the parties' daughter, CS, and directing the defendant to pay that sum towards CS's college education is denied.
Plaintiff's cross-motion is denied in all other respects.
This constitutes the decision and order of the Court.
E N T E R:
_________________________
Joseph P. Spinola, Justice
Supreme Court, Nassau County
Dated: May 20, 2005
Mineola, NY
Footnotes
Footnote 1:Defendant's motion to reargue this issue was denied pursuant to Justice Marano's decision dated March 14, 2005.
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