Matter of S.R. v D.R.

[*1] Matter of S.R. v D.R. 2010 NY Slip Op 51232(U) [28 Misc 3d 1209(A)] Decided on July 9, 2010 Family Court, Onondaga County Hanuszczak, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 July 9, 2010
Family Court, Onondaga County

In the Matter of S.R.

against

D.R., Respondent.



F-XXXXX-09



Clifford Forstadt, Esq., for petitioner; respondent, pro se, in Objection.

Michael Hanuszczak, J.

On June 11, 2010, the attorney for the petitioner filed an Objection, together with a Memorandum of Law, to the Decision/Order, filed and entered on May 14, 2010. The attorney for the respondent was served with the Objection.

As background, on January 27, 2009, the petitioner-mother filed a petition in Onondaga County Family Court seeking to modify the child support provisions contained in the parties Final Decree of Divorce, dated [redacted], which was issued by the District Court of El Paso County, State of Texas. The modification petition stated that the mother resided at [redacted], New York with the parties' children: K. R., dob [redacted] 1991; C. R., dob [redacted] 1992; K. R., dob [redacted] 1994; and C. R., dob [redacted] 1997. The petition further stated that the respondent-father resided at [redacted], Texas.

The modification petition alleged that, since the entry of the divorce judgment, the income of the father had changed significantly and that the custodial arrangement had changed. The record indicates that the father earned approximately $34,380.00 in 2007, and he stipulated to an annual income of $44,676.00 in 2009. Attached to the petition was a Custody and Support Agreement, dated August 29, 2007, in which the parents agreed that the custody provisions would be changed to give the mother sole legal custody of the children and that the child support obligation shall be governed by the laws of the State of New York. The Agreement also calculated the CSSA support obligation and stated that each party received a copy of the Child Support Standards Act (CSSA) guidelines. The Agreement stated that the father would pay the amount of $1,008.00 per month to the mother for the support of the four children as the [*2]presumptively correct amount under the CSSA.

On April 2, 2009, the Support Magistrate issued an Order of Dismissal, stating that New York State did not have jurisdiction to modify the support provisions as the State of Texas had continuing, exclusive jurisdiction. The attorney for the mother filed an Objection to the Order of Dismissal, and this Court determined that the provisions of UIFSA (Uniform Interstate Family Support Act) applied. (UIFSA is codified in Article 5-B of the New York Family Court Act.) After a review of the case file, this Court granted the Objection, finding that New York had jurisdiction under §580-611 of the Family Court Act in that the Texas divorce decree had been registered in the Onondaga County Family Court, the parties had consented in writing to jurisdiction in New York for support, a record of that written consent had been filed in New York and Texas, and the father had filed an "Electronic Testimony Application and Waiver of Physical Presence" in which he agreed to personal jurisdiction by New York.

The modification petition came before the Support Magistrate, and a hearing was conducted on April 15, 2010. Each party appeared at the hearing by an attorney; the mother appeared personally; and the father appeared telephonically. In the Decision/Order, filed on May 14, 2010, the Support Magistrate applied the provisions of the CSSA to three of the four subject children. The Support Magistrate found that New York support law did not apply to the oldest child, who was over the age of 18, because the right to child support expires at age18 under Texas law. The Support Magistrate cited Section 580-611(c) of the Family Court Act, which states "...a tribunal of this state may not modify any aspect of a child support order that may not be modified under the law of the issuing state." The Support Magistrate also cited Spencer v. Spencer, 10 NY3d 60.

The attorney for the mother objected, arguing that it was an error of law to apply Texas law when the parties had consented to New York jurisdiction.

Under ordinary circumstances, this Court would agree with the Support Magistrate that Section 580-611(c) of UIFSA would act as a prohibition against a New York court ordering child support for a child over the age of 18 years since that is the rule under Section 154.006 of the Texas Family Code.However, in the instant proceeding, the parties entered into a written Agreement which not only consented to New York jurisdiction but also to the specific application of the CSSA. Indeed, in the father consented to a specific amount of child support which was calculated under the CSSA.

In Spencer, the Court of Appeals decision cited by the Support Magistrate, the facts did not concern an agreement in which the parties had consented to change jurisdiction from the state issuing the original order. Although this Court found published decisions in which the parties

agreed to abide by the support laws in the consent state rather than those of the state issuing the original order, it has not found a case where the parties further agreed on a specific amount of child support calculation under the laws of the consent state, as is the case in the instant proceeding.

Under these circumstances, this Court believes that its analysis under Section 580-611(c) of UIFSA should be framed by the following questions: (1) does the Texas Family Code allow parents to modify an existing child support order by entering into a written agreement which is then submitted to the court for approval, and (2) does the Texas Family Code permit a written child support agreement to deviate from Texas child support guidelines. [*3]

Section 154.124 of Title 5 of the Texas Family Code states: "...the parties may enter into a written agreement containing provisions for support of the child and for modification of the agreement, including variations from the child support guidelines provided by Subchapter C." The statute also states that if the court finds that the agreement is in the child's best interests, the court shall render an order in accordance with the agreement.

Section 156.401 of the Texas Family Code states that a court may modify a child support order: "If the parties agree to an order under which the amount of child support differs from the amount that would be awarded in accordance with the child support guidelines, the court may modify the order only if the circumstances of the child or a person affected by the order have materially and substantially changed since the date of the order's rendition."

Therefore, this Court finds that Texas law not only permits parents to enter into a written agreement to modify the child support provisions of their divorce decree but also that the written agreement may deviate from Texas child support guidelines upon a finding that there has been a material and substantial change in circumstances and that the agreement is in the best interests of the child.

In the instant proceeding, Section 580-611(c) of UIFSA does not prohibit a New York court from approving a child support agreement which provides for child support until the age of 21 years since a Texas court could approve such an agreement.

Based upon its review of the case file, this Court finds that there has been a material and substantial change in circumstances since the entry of the divorce decree in that the subject children are now in the sole legal custody of their mother and the father's income has increased substantially. This Court also finds that the Custody and Support Agreement, which was executed by the parents on August 29, 2007, is in the best interests of the subject children.

Accordingly, this Court finds that, as all of the UIFSA requirements have been met for New York to assume jurisdiction over the issue of child support in this particular case, it is proper for New York to issue a child support order based upon the Child Support Standards Act in which a child receives support until the age of 21 years. Fam.Ct. §413(1)(a).

Accordingly, the Objection is granted. The Decision/Order, filed on May 14, 2010, is continued except for the following modifications:

1.Add K. R., date of birth [redacted] 1991, to the list of children for whom D. R. is responsible to support. (Decision/Order, page 2 line 5.)

2.Modify "$232.00 weekly for the support of three children" to "$248.00 weekly for the support of four children. (Decision/Order, page 2 line 9.)

3.Vacate the original first, second, and third decretal paragraphs in the Decision/Order and substitute the following decretal paragraph:

ORDERED, that the Judgment of Divorce herein, dated November 17, 2000, be and the same hereby is modified in the following respects: Effective January 27, 2009, D. R. is chargeable with the support of K. R., K. R., C. R., and C. R. and is possessed of sufficient means and able to earn such means to provide payment of the sum of $248.00 weekly to S. R., payable through the Support Collection Unit; and it is further

4.Add the following text to the original fourth decretal paragraph in the Decision/Order prior to "and it is further": the Support Collection Unit shall calculate the amount of any retroactive support due to [*4]the modification of the order after applying the appropriate credits for past payments made by D. R. and this amount shall not be reduced to a money judgment if paid in accordance with the schedule herein; the Support Collection Unit shall collect an amount for retroactive support in addition to the basic care obligation from D. R. in accordance with the following schedule: during 2010, $50.00 per month; during 2011, $100.00 per month; during 2012, $200.00 per month; during 2013 and until completion of payment of retroactive arrears, $300.00 per month;

5.Add K. R. and C. R. to the list of dependents for whom S. R. must provide health insurance. (Decision/Order, sixth decretal paragraph on page 3.)