A.P. v D.R.

[*1] A.P. v D.R. 2013 NY Slip Op 51849(U) Decided on October 24, 2013 Supreme Court, Westchester County Duffy, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 October 24, 2013
Supreme Court, Westchester County

A.P., Plaintiff,

against

D.R., Defendant.



5108-12



Vivien I. Stark, Esq.

Attorney for Defendant

370 Lexington Avenue, Suite 901

New York, New York 10017

Elliot J. Danziger, Esq.

Danziger & Mangold, LLP

Attorney for the Plaintiff

170 Hamilton Avenue, Suite 205

White Plains, New York 10601

Colleen D. Duffy, J.

On June 17, 2013, Defendant D. R. ("Defendant") filed an order to show cause, affidavit, affirmation of Vivien I. Stark, Esq., and exhibits thereto, seeking an order: 1) modifying the parties' agreement as to a visitation schedule between Defendant and the parties' child; 2) for a downward modification of child support; 3) requiring Plaintiff A. P. ("Plaintiff") to make all payments associated with repayment to the Internal Revenue Service ("IRS") for a tax credit for first time homeowners that the parties had used to purchase the Marital Residence; 4) transferring and consolidating a pending Family Court action with this proceeding, and 5) for any other relief which the Court finds just and proper.

On July 9, 2013, Plaintiff filed an affidavit, affirmation of Elliott Danziger, Esq., and exhibits thereto, in opposition to Defendant's motion.

On July 18, 2013, Defendant filed an affidavit and affirmation of counsel in reply.

On September 12, 2013, at a court proceeding, the Court granted a hearing on the issue of Defendant's application for an order compelling Plaintiff to make all payments associated with repayment to the IRS for the tax credit. For the reasons set forth herein, Defendant's application seeking to have the Court set a new access schedule with the Subject Child is granted. In addition, Defendant's application for a downward modification of his child support obligation is granted to the extent that the Court will hold a hearing on the issue. Finally, Defendant's application for consolidation of the pending Family Court matter with this matter is denied.

BACKGROUND OF THE ACTION

The parties were married in New York State in 2008 and have one child (hereinafter, the "Subject Child").

On June 23, 2012, the parties entered into a written stipulation of settlement ("Stipulation of Settlement") to resolve the issues then pending in their divorce action. The Stipulation was incorporated but not merged into the Judgment of Divorce, entered March 7, 2013 ("Judgment of Divorce").

Pursuant to the Stipulation of Settlement, the parties have joint legal custody of the Subject Child with primary physical custody of the Subject Child by Plaintiff and Defendant has "reasonable and liberal visitation . . . to be agreed upon between the parties." Stipulation of Settlement, Article IX, ¶¶ 1, 3. The Stipulation provides that Defendant is entitled to weekly scheduled mid-week evening visitation with the Subject Child, and weekend visitation to be agreed upon by the parties. Id. at ¶ 4-5. The Stipulation also provides that Plaintiff shall have the Subject Child on all vacations from school until the Subject Child reaches the age of 8 and that the parent who is with the Subject Child is to ensure that there is at least one phone call per day between the Subject Child and the other parent. Id. at ¶¶ 6 and 9.

The Stipulation of Settlement further provides that Plaintiff shall have the "absolute right to relocate to . . . another country with the [Subject C]hild, with the knowledge to the husband through a written letter." Id. at ¶ 15.

Pursuant to the Stipulation of Settlement, Defendant is required to pay Plaintiff $210.00 per week as basic child support,[FN1] and an additional $381.00 per week for Defendant's share of out [*2]of pocket child care, educational and extra-curricular expenses ("add-ons"). Stipulation of Settlement, Article XI, ¶ 1. The full amount is to be paid through a wage deduction order.

Pursuant to the Stipulation of Settlement, Defendant also is required to pay 57% of actual bills for out-of-pocket medical and extraordinary expenses for the Subject Child as requested by Plaintiff. Id.

With respect to the issue of equitable distribution, the Stipulation of Settlement expressly provides that Plaintiff shall have sole and exclusive occupancy and ownership of a cooperative apartment in Hartsdale, New York (the "Marital Residence"). Defendant was to transfer his interest in the Marital Residence to Plaintiff. Stipulation of Settlement, Article VI, ¶ 1.

On March 18, 2013, Plaintiff filed two petitions in Family Court, Westchester County, one seeking modification of the Judgment of Divorce to have all child support payments made through the Support Collections Unit (F-4105-13/13B), and the other seeking enforcement of child support arrears (F-4105-13/13A).

On April 12, 2013, Plaintiff relocated to Colombia with the Subject Child.

This proceeding ensued.

CONCLUSIONS OF LAW

A.Plaintiff's Relocation to Colombia with the Subject Child

Warrants Modification of Parties' Custody Agreement

Where parties enter into a stipulation concerning custody and visitation, the courts will modify that agreement when there is a sufficient change in circumstances since the time of the stipulation, and such modification is in the best interests of the child. Matter of Manfredo v. Manfredo, 53 AD3d 498, 499 (2d Dept. 2008)

(modification of existing custody arrangement pursuant to stipulation of settlement will be made only upon showing of sufficient change in circumstances demonstrating real need for a change to insure child's best interest); Matter of Said v. Said, 61 AD3d 879, 880 (2d Dept. 2009).

Plaintiff's relocation of the Subject Child to Colombia has rendered ineffectual the provisions of the parties' Stipulation of Settlement with respect to Defendant's access to the Subject Child. The distance between Colombia and New York precludes Defendant from exercising his right to weekend access or mid-week access to the Subject Child. In addition, the Stipulation provides that Plaintiff is entitled to custody of the Subject Child on all school vacations until the Child reaches the age of 8. As the Subject Child is only four years old, unless Defendant travels to Colombia, there would be virtually no opportunity for Defendant to exercise any sort of meaningful access with the Subject Child for at least four years.

It is also in the best interests of the Subject Child to modify the terms of the parties' [*3]agreement with respect to Defendant's access to the Subject Child. Grasso v. Grasso, 51 AD3d 920, 921-21 (2d Dept. 2008)(modification of visitation schedule upon children's move out of state would permit father to continue to have a meaningful relationship with children). Defendant has had a significant parenting role in the Subject Child's life. Defendant contends, and Plaintiff does not deny, that Defendant has enjoyed a loving, close relationship with his daughter and that, prior to the move to Colombia , he saw his daughter two to three times per week. Modification of the parties' agreement is necessary to ensure a continued relationship between the Subject Child and Defendant. Matter of Dorsa v. Dorsa, 90 AD3d 1046, 1047 (2d Dept. 2011)(appropriate visitation schedule must be established to ensure continued access by parent who has played important role in child's life); Oddy v. Oddy, 296 AD2d 616, 617-18 (3d Dept. 2002)(modification granted when in best interests of child).

Accordingly, the Court finds that Plaintiff's move to Colombia is a substantial change in circumstances and that modification of the parties' custody and visitation arrangement is in the best interests of the Subject Child. Mathie v. Mathie, 65 AD3d 527, 531 (2d Dept. 2009)(mother's move out of state warranted modification of visitation provisions of stipulation of settlement); Martinez v. Konczewski, 85 AD2d 717, 717 (2d Dept. 1982)(mother's move out of state required modification of visitation provisions of order), aff'd 57 NY2d 809 (1982).

The new Court ordered access schedule is set forth further herein. The issue of which party shall bear the cost for the Subject Child's travel to and from the United States for Defendant's Vacation Access shall be the subject of the hearing to be held on October 29, 2013.

B.Defendant's Application for a Downward Modification

Raises Factual Issues Requiring a Hearing

A court may modify an award of child support, even one which incorporates but does not merge a stipulation of the parties, upon a showing of a substantial change in circumstances.[FN2] DRL § 236(B)(9)(b)(2); Matter of Malbin v. Martz, 88 AD3d 715, 716 (2d Dept. 2011).

Factors the Court considers in determining whether there has been a substantial change in circumstances include "the needs of the children, the increased cost of living insofar as it results in greater expenses for the children, a loss of income or assets by a parent or a substantial improvement in the financial condition of a parent, and the current and prior lifestyles of the children." Shedd v. Shedd, 277 AD2d 917, 918 (4th Dept. 2000); Matter of Fantel v. Stamatatos, 59 AD3d 717, 718 (2d Dept. 2009); Love v. Love, 303 AD2d 756 (2d Dept. 2003). The Court measures "change in circumstances" by comparing the payor's financial situation at the time of the application for downward modification with the financial situation at the time of the order or judgment. Matter of Malbin, at 716.

Here, Defendant has made a prima facie showing of a substantial change in [*4]circumstances sufficient to warrant a hearing on the issue of a modification of his child support obligation. Forte v. Forte, 304 AD2d 577, 577-78 (2d Dept. 3003). According to Defendant, the cost of living in Colombia is substantially lower than in New York. See Nieves v. Gordon, 264 AD2d 446, 1999 NY App. Div. Lexis 8689, *1-2 (2d Dept. 1999)(on downward modification application, actual expenses of the child are relevant). Defendant also contends that his income has decreased by approximately $300 per week as a result of the loss of available overtime, and he has attached documentary evidence to show that income drop. See Aerotek E & E Pay Stub Comparison, annexed as Exhibit D to Defendant's Aff. In Support, filed June 17, 2013. In addition, Defendant has alleged that he has fallen behind in his bills and is unable to pay his own expenses. Defendant also contends that Plaintiff is no longer working in Colombia and has no childcare expenses, warranting a reduction or elimination of the $381.00 a week Defendant is obligated to pay for childcare. Finally, Defendant notes that Plaintiff's relocation to Colombia will cause Defendant to incur additional travel costs to exercise visitation with the Subject Child.

Plaintiff has controverted Defendant's allegations, contending that she is currently seeking work in Colombia , and that she has additional expenses for the Subject Child with respect to educational and healthcare expenses in Colombia that she did not have in New York.

These issues of disputed facts require a hearing. Rogers v. Rogers, 151 AD2d 738, 738 (2d Dept. 1989)(disputed issues of fact require a hearing on downward modification issue); Hornok v. Hornok, 121 AD2d 937, 938 (1st Dept. 1986) (on motion for downward modification, only a hearing can resolve disputed factual issues).

C.Defendant's Motion to Consolidate the

Family Court Matter with this Matter is Denied

Pursuant to CPLR § 602(b), when an action is pending in Supreme Court, the court may, upon motion, remove to itself an action pending in another court and consolidate it with the Supreme Court action. Consolidation may be ordered where the actions involve common questions of fact or law. CPLR § 602(a).

Here, consolidation is not appropriate. The Family Court matter was commenced in March 2013 and seeks enforcement of child support arrears and collection through the Support Collection Unit. These two issues have no bearing on the issues in this proceeding. Defendant's request for a downward modification, if granted, will apply prospectively only, and will have no effect on any arrears owed.DRL § 236(B)(9)(b)(2(iii); Clark v. Liska, 263 AD2d 640, 641 (3d Dept. 1999). Likewise, the determination of whether the party's custody and visitation agreement must be modified has no common issue of fact or law with the issue of child support arrears. Beerman v. Morhhaim, 17 AD3d 302 (2nd Dept. 2005)(consolidation inappropriate where no common issues of fact or law); Matter of Ungar v. Feller, 24 Misc 3d 1222A, 2009 NY Misc. Lexis 1896, ***22 (Sup. Ct., Kings Co.), aff'd in part and modified in part, 64 AD3d 672 (2009). Finally, the issue of which party is obligated to repay the money owed pursuant to the IRS tax credit also has no relationship to child support arrears. Accordingly, Defendant's application for consolidation of the pending Family Court matter with [*5]this matter is denied.

CONCLUSION

For the foregoing reasons, the Court will hold a hearing on October 29, 2013, on the issues of Defendant's applications for a downward modification of child support and

for an order compelling Plaintiff to make all payments associated with repayment to the IRS for the tax credit, as well as on the issue of the allocation of the costs for the Subject Child's travel to New York for the Defendant's access time with the Subject Child, as set forth below.

With respect to Defendant's access schedule with the Subject Child,

IT IS HEREBY ORDERED that any and all prior Orders of visitation and the provisions contained within Article IX of the parties' Stipulation of Settlement with respect to Defendant's visitation with the Subject Child are hereby superceded by this Order only to the extent that such prior provisions conflict or are inconsistent with the provisions of this Order, as set forth further herein; and it is further

ORDERED that Defendant shall have up to four consecutive weeks of overnight access with the Subject Child each year (hereinafter "Summer Access"), effective 2014, at Defendant's residence, which access is to occur during the summer months, such access not to interfere with any regular school schedule of the Subject Child when she attains school age; if, after attaining school age, the Subject Child is required to attend school during the summer months in which she would be with Defendant, Plaintiff shall consult with Defendant to schedule make-up access time; and it is further

ORDERED that Defendant must notify Plaintiff in writing by May 15th of each year as to which weeks he plans to utilize his Summer Access; and it is further

ORDERED that, if Defendant fails to meet the timetable set forth in the paragraph above as to written notification to Plaintiff of his intention to utilize his Summer Access, Plaintiff may make summer plans for the Subject Child and shall notify Defendant, in writing, by May 30th of every year of any such summer schedule of the Subject Child that may conflict with Defendant's as of then, unscheduled Summer Access; and it is further

ORDERED that Plaintiff shall not unreasonably withhold Defendant's Summer Access simply because Defendant did not comply with the timetable set forth herein; it is further

ORDERED that Plaintiff shall ensure that the Subject Child has meaningful contact with Defendant every Father's Day, on Defendant's birthday, and on the Subject Child's birthday; the nature of such contact to be determined (i.e., telephone, in person, "Skype", etc.) by location of the Subject Child on such days; and it is further

ORDERED that, commencing when the Subject Child is 10 years old, in the odd years, Defendant shall have the right to access with the Subject Child during the week of the Subject Child's Spring Break , if any, from school from Sunday at 9 a.m. to the following Sunday at 9 a.m. and, in the even years, one week at Christmas time commencing on December 23rd of each such year until December 31st of such year; and it is further

ORDERED that, Defendant may have reasonable overnight and weekend access with the Subject Child in Colombia on 48 hours notice to Plaintiff; and it is further

ORDERED that Plaintiff shall notify Defendant two weeks in advance of any time that the Subject Child is going to be within 180 miles of Westchester County and, at any such time, Defendant shall have the right to reasonable overnight and weekend access with the Subject [*6]Child in his home; and it is further

ORDERED that each party shall have reasonable telephone and/or Skype or other form of visual internet contact with the Subject Child while the child is with the other parent not to exceed one telephone call per day; each party shall promote said telephone and/or Skype contact between the Subject Child and the other party including initiating such telephone call or Skype call between the Subject Child and the other parent if no call previously had occurred that day and, under no circumstances shall either parent circumscribe the length of such calls unless such call exceeds fifteen minutes in duration and then such call may be ended at the direction of either parent; and it is further

ORDERED that each party shall have the right of unlimited correspondence with the Subject Child and the custodial parent shall not censor or interfere with such correspondence; and it is furtherORDERED that, within ten (10) days of receipt of this Order, the parties shall exchange, via counsel, an email address to which the other party may send communication as set forth herein; and it is further

ORDERED that the names of both parents shall appear on all school, governmental, law enforcement, medical and health-related records, and both parents shall be provided access to all teachers, governmental officials and doctors. Plaintiff has an affirmative obligation to provide in writing to Defendant within 60 days of receipt of this Order and thereafter on November 1 of each year, the names of any and all of the Subject Child's educational, medical, dental or daycare providers and any other providers in connection with the Subject Child's general health and welfare, even if such providers have not changed from year to year as well as written notices of any changes and any new contact information for such providers within thirty days of receipt of such information; and it is further

ORDERED that neither parent shall disparage the other party in the presence of the Subject Child, nor allow third parties to do so in the presence of the child; and it is further

ORDERED that each parent shall encourage a healthy and loving relationship between the Subject Child and the other parent; and it is further

ORDERED that each party shall give two weeks advance notice to the other in that event that he or she will not be able to comply with the access terms of this order; and it is further

ORDERED that Defendant shall have such other and further access as the parties may agree.

The Court has considered the following submissions of the parties: Defendant's order to show cause, affidavit, affirmation of counsel, and exhibits thereto, filed June 17, 2013; Plaintiff's affidavit, affirmation of counsel, and exhibits thereto, in opposition to Defendant's motion, filed July 9, 2013; Defendant's Reply Affirmation, filed July 18, 2013.

This constitutes the Decision and Order of this Court.

DATED: White Plains, New York

October 24, 2013 [*7]

HON. COLLEEN D. DUFFY

JUSTICE OF THE SUPREME COURT Footnotes

Footnote 1: The parties expressly opted out of the child support guidelines of the Child Support Standards Act ("CSSA") in the Stipulation of Settlement, stating that "[t]he amount of Child Support provided for herein is neither unjust nor inappropriate." Id. at ¶ 1F. The Stipulation of Settlement notes that the Basic Child Support amount equals the CSSA guideline and that, if a court should find that, with the add-ons, the child support exceeds CSSA guidelines, it is due to factors enumerated by the parties, including that the parties have agreed that $381.00 per week is the correct amount for half of the add-ons and prefer the convenience of a set figure, and that Defendant's remaining share of add-ons will be paid by Defendant's 57% payment of actual bills for out-of-pocket medical and extraordinary expenses. Stipulation of Settlement, Article XI, ¶¶ 1E, 1F.

Footnote 2: This is the applicable standard for cases where the judgment of divorce was entered on or after October 13, 2010. DRL § 236(B)(9)(b)(2). In this case, the Judgment of Divorce was entered on March 7, 2013.