Gannon v Usenza

[*1] Gannon v Usenza 2009 NY Slip Op 50949(U) [23 Misc 3d 1126(A)] Decided on May 15, 2009 Family Court, Albany County Duggan, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on May 15, 2009
Family Court, Albany County

Maura G. Gannon, Petitioner

against

Ronald A. Usenza, Respondent Ronald A. Usenza, Petitioner Against Maura G. Gannon, Respondent



Ronald A. Usenza,Petitioner

against

Maura G. Gannon,Respondent



F-2808-00



APPEARANCES: FOR PETITIONER:Michael P. Friedman, Esq.

FOR RESPONDENT: Joanne M. White, Esq.

W. Dennis Duggan, J.

This matter is before the Court on the father's objections to the Support Magistrate's Findings of Fact and Order entered after a reversal and remand by the Appellate Division. For the reasons set forth in this decision, the matter must be remanded back to the Support Magistrate for a de novo determination of child support based on the parents' first child support petitions filed in April and June, 2000. All orders of support issued since that date are found to be invalid because the disclosure requirements of the Family Court Act have not been met.

Procedural History

Not long after the birth of their daughter in September of 1998, the parents separated. That was followed by support petitions filed in Family Court in the Spring of 2000. The petitions were resolved in May, 2001, by a written stipulation negotiated with the help of their lawyers. In March, 2005, the father filed a modification petition and that was also resolved by agreement, without the assistance of counsel. In July, a different Support Magistrate entered an amended order of support on consent to correct a technical defect. No objections were filed and no appeals were taken from either the March or July orders.

In June, 2006, the father again filed a modification petition. For the first time, he raised the objection that the March and July, 2005 proceedings were defective because the required CSSA [*2]disclosures were not made on the record. This Court upheld the Magistrate's dismissal of the father's petition, holding that because the father did not file objections to the 2005 proceedings, the matter was not properly before the Court. The father appealed this decision.

The Appellate Division reversed this Court's decision and set aside the July, 2005 order of support because it failed the disclosure "catechism requirements" of FCA §413(1)(h). The Third Department held:

As relevant here, this provision [FCA §413(1)(h)] requires that all such agreements or stipulations contain an acknowledgment that the parties have been advised of the CSSA, a statement "that the basic child support obligation provided for therein would presumptively result in the correct amount of support to be awarded" and a specification as to what the amount of support would have been under the statute. The requirement that the agreement so provide cannot be waived by either party and, therefore — contrary to the mother's assertions and the findings of Family Court — the father's failure to raise this defect by way of a timely objection to the July 2005 order is not fatal.... [T]he record of the oral stipulation is devoid of evidence that the parties were advised of the provisions of the CSSA, and we find that the Support Magistrate's mere reference to the "[g]uidlines" to be insufficient to satisfy this statutory directive...Further the stipulation fails to establish that the parties were apprised that the application of the statute "would presumptively result in the correct amount of child support to be awarded." Thus, the omission of these statutory catechisms renders the stipulation and resulting order unenforceable and, consequently, the court was required to disregard it and address the support issue de novo. (Usenza v. Swift, 52 AD3d 876, 878; internal citations not included, emphasis added)

.OPINION

After further review by the Support Magistrate, the matter is back before this Court on the father's objections. The father now claims that the May, 2001 order is invalid because it too fails to comply with the disclosure requirements of the CSSA. There can be no doubt that any findings based on the March or July, 2005, order must be set aside and a new determination must be made based on the father's March 2, 2005, filing. These determinations have been made by the Appellate Division. The only question now before the Court is whether the father can challenge the 2001 order. He first challenged the validity of that order in his petition filed January 31, 2006. Based on the Usenza rule, the validity of the 2001 order is properly before the Court. In Usenza, the Appellate Division permitted the father to raise objections to an old order in a new petition. This is exactly what the father has done here.

In the 2001 proceeding, the order of support was the result of a submitted stipulation and no disclosures were ever placed on the record. That stipulation has even more defects than the March and July, 2005 stipulations that have been disapproved by the Appellate Division. The only thing remotely close to a disclosure in the parents' stipulation (which was submitted to the Court by counsel with no personal appearances) is this: "... and the parties having entered into a stipulation in accordance with the Child Support Standards Act...."

The 2001 proceedings are revealed to be even more defective when one notes that the order contains disclosure information that is not in the record or in the parents' stipulation. For example, the Order contains reasons why the parents are deviating from the CSSA presumptively correct [*3]amount but there is no discernable source of that information . The order is also defective because the Court does not state its own reasons for approving the deviation. (See FCA §413[1][h]: "Any court order or judgment incorporating a validly executed agreement or stipulation which deviates from the basic child support obligation shall set forth the court's reasons for such deviation." Emphasis added.)

FCA § 413(1)(h) specifies the disclosure requirements that must be set forth in all child support agreements. As explained by the Appellate Division in Usenza, the agreement must recite the "statutory catechisms." These statutory catechisms are as follows:

First, the parties must be advised of the provisions of FCA § 413(1). It is worth noting, however, that strict compliance with this provision is virtually impossible. The subdivision contains seventy-four individually designated paragraphs and almost 3,000 words. It is a section that only some lawyers and few judges fully comprehend.

Second, the parties must be advised that the basic child support obligation provided for in §413(1) would "presumptively result in the correct amount of child support to be awarded." The term "basic child support obligation" is one of art in the Family Court Act and, as one might expect, its definition meets the I.R.S. standards for complexity and opacity. The basic child support obligation, greatly simplified for the purposes of this decision, is computed by adding the following elements:

1. The combined parental income up to $80,000 multiplied by the appropriate percentage based on the number of children and then prorated based on the ratio of each parent's income to the combined income, plus;

2. The amount of combined parental income over $80,000 as determined by the Support Magistrate using the "f" factors or the support percentages. The ten "f" factors are contained in FCA §413(1)(f) and must be used by the court to determine if the use of the percentages is unjust or inappropriate and how much of the combined parental income over the $80,000 cap will be apportioned to child support, plus;

3. Prorated costs of child care expenses, plus;

4. The prorated costs of health care expenses, plus;

5. The costs of private education, if applicable.

One could envision how this provision might be explained to an unrepresented parent in a reasonablely intelligible manner—but only if one skipped over the meaning of the term "income." Income is defined in §413(1)(b)(5) and contains about 600 words in thirty-one designated paragraphs. While Support Magistrates do the best they can to strike a middle ground and comply with the spirit of the disclosure law, complying with the letter of the law is a virtual impossibility. Parents would be best served by handing out to them a few examples of how the CSSA would apply to typical families and a FAQ sheet.

Third, if the parents' agreement deviates from the basic child support obligation, then the agreement must specify the amount that the basic child support obligation would have been and the [*4]reason why the parents are deviating. Because the law contains no restrictions on the parents' reasons for agreeing to deviate from the formula, presumably they could just say that they are deviating because they want to and its nobody's business why—just as no one questions what percentage of income that an intact family applies to child support. In any event, compliance with this provision can only be approximated in cases where the combined income is over $80,000. The reason is that for combined income over $80,000, it is the court that must determine what portion of income shall be applied to child support using the "f" factors. How the parents could determine what a court would do and then disclose that in their agreement is a mystery. Compliance with this provision is usually met by applying the CSSA percentages to all parental income, regardless of the cap. Of course, if a court did that it would be violating the law because applying income above the $80,000 cap requires a factor balancing process. (Cassano v. Cassano, 85 NY2d 649 [1995]) More importantly, the failure of the Legislature to adjust the cap has become a serious impediment to an equitable and faithful application of the law. The cap amount dates back to 1989. If it was adjusted for inflation, it would now be $143,526.[FN1] A large majority of families with two wage earning parents now routinely exceed the cap. For example, a school teacher-dad and a surgical nurse-mom could easily approach or exceed $150,000 in combined income. In fact, it is the common practice for courts to apply the statutory percentages to all parental income up to about $150,000 before the "f" factors are seriously applied.

Fourth, the requirement that the amount of the basic child support obligation must be disclosed and the reasons for any deviation "may not be waived by either party or counsel." As noted above, if the combined parental income exceeds $80,000, the parents can not truly disclose the basic child support obligation because they would have to predict how a court would apply the "f" factors. To be on the safe side of compliance, the parents must disclose what the child support would be if the percentages were applied to all of the parental income, without regard to the cap.

Fifth, a court order that incorporates a disclosure compliant stipulation which deviates from the basic child support obligation must set forth "the court's reasons for such deviation." This provision is honored mostly in the breach. If the court were merely incorporating a disclosure compliant agreement, it would presumably have no reasons of its own for deviating except, perhaps, to adopt the parents' reasons.

However, while §413(1)(h) requires that the parents state the reasons for their deviation from the guidelines, the law does not require that their reasons be based on any specific formulations, and it does not require them to be based on the "f" factors. For example, a deviation downward might be because a custodial parent has significant off-the-books income and neither parent wants to upset the apple cart by a public disclosure so their stated reason mentions that the deviation is based on "their respective resources."

On the other hand, because courts are subject to abuse of discretion review, they must articulate their approval of the deviation based on the "f" factors (see Matter of DuBois v. Swisher, 306 AD2d 610 [3d Dept 2003]). However, this is not the most important reason for requiring the court to set forth in the order its reasons for deviating from the CSSA presumptively correct amount of child support. In support hearings, the child is not represented and there is a societal interest in insuring that children receive adequate support. Also, because the law does not set forth any list of [*5]approved deviation reasons that applies to parents, the requirement that the court approve the deviation based on its own application of the "f" factors is a guard against fraud, overreaching or improvident agreements.

Sixth, if the parents are not represented by counsel, they must be given a copy of the child support standards chart.

The instructions from Usenza are very clear.When applying §413(1)(h), the trial court must cross every t and dot every i. "[T]he omission of these statutory catechisms renders the stipulation and resulting order unenforceable (Usenza, at 878). In this case, because the parents 2001 agreement fails to recite the "Usenza Catechisms," it is unenforceable and the parents' child support obligation must be redetermined based on the parents' petitions filed in April and June,2000.

In summary, the "Usenza Catechisms" rule is this:

1. No order is valid unless the underlying agreement strictly adheres to the disclosure requirements of FCA §413(1)(h).

2. A Usenza catechism objection can be raised in a new petition or on appeal. It need not be preserved for appeal by an objection in the proceeding that gave rise to the defective order nor raised in objections to that order. The rule set down by the Appellate Division in Usenza, on its face, allows collateral attacks against a defective order at any point in time in any proceeding. Whether this is what was intended can only be answered by their next pronouncement on the subject. Whether they will carve out exceptions for proceedings where the principle of laches should be applied or where there is substantial compliance with the statute or whether representation by counsel makes a difference remains to be seen. Under the present state of the law, only a minor miscalculation of the CSSA child support is forgivable (Sullivan v. Sullivan, 46 AD3d 1195, 1196 [2007]). In effect, in citing favorably to Smith v. Mathis-Smith (17 AD3d 1157 [2005], the Third Department has held a non-compliant Usenza order is void ab initio and can be challenged at any time.

At this time, there is no valid existing order of support. The only possible resolution is for the matter to be remanded to the Support Magistrate for a new hearing on the support petitions filed in 2000. Based on the above, the father's objections are granted. The matter is remanded to the Support Magistrate for a de novo proceeding on the April 27, 2000, and June 12, 2000 petitions. The Support Magistrate's order entered on February 19, 2009, and the order for counsel fees entered on March 9, 2009, are vacated. All remaining petitions filed after 2000 are dismissed.[FN2]

ENTERED

DATED: May 15, 2009

W. DENNIS DUGGAN, J.F.C.

Entered in the Office of the Clerk

of the Family Court, State of New

York, County of Albany on

May 14, 2009

David B. Cardona, Chief Clerk [*6]

By:

Cases considered:

Cassano v. Cassano, 85 NY2d 649 (1995)

Cheruvu v. Cheruvu, 59 AD3d 876 (3d Dept 2009)

Latimer v. Cartin, 57 AD3d 1264 (3d Dept 2008)

Rossiter v. Rossiter, 56 AD3d 1011 (3d Dept 2008)

Dorosky v. Herald, 52 AD3d 829 (2d Dept 2008)

Usenza v. Swift, 52 AD3d 876 (3d Dept 2008)

Sullivan v. Sullivan, 46 AD3d 1195 (3d Dept 2007)

Smith v. Mathis-Smith, 17 AD3d 1157 (4th Dept 2005)

Lane v. Lane, 8 AD3d 486 (2d Dept 2004)

McColl v. McColl, 6 AD3d 794 (3d Dept 2004)

Fessenden v. Fessenden, 307 AD2d 444 (3d Dept 2003)

DuBois v. Swisher, 306 AD2d 610 (3d Dept 2003)

Happich v. Happich, 285 AD2d 509 (2d Dept 2001)

Gallet v. Wasserman, 280 AD2d 296 (1st Dept 2001)

Sievers v. Estelle, 211 AD2d 173 (3d Dept 1995) Footnotes

Footnote 1: Based on the CPI for All Urban Consumers and adjusted annually. (www.bls.gov)

Footnote 2: This decision has been edited for publication.