Garofalo v Garofalo

[*1] Garofalo v Garofalo 2018 NY Slip Op 50925(U) Decided on May 16, 2018 Supreme Court, Monroe County Dollinger, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 16, 2018
Supreme Court, Monroe County

Tracy E. Garofalo, Plaintiff,

against

Gary T. Garofalo, Defendant.



12/12397



Maureen Pineau, Esq.

Attorney for Plaintiff

William H. King, Esq.

Attorney for Defendant
Richard A. Dollinger, J.

Two well-worn adages dictate that children can be expensive to raise [FN1] and, as they grow, they tend to become more expensive.[FN2] But, is a child becoming a teenager — alone — a change in circumstances sufficient to modify a child support order?

In this instance, a divorced mother seeks to modify a prior child support obligation, obtain a money judgment for certain expenses, and other relief. The father cross-moves for a declaration that he has paid extracurricular fees, (as required by their separation agreement) and asks for a further declaration that certain expenses that he paid in 2016 are covered by the "extracurricular" provisions of the same agreement. Both sides also seek attorneys fees and costs.

Under the judgment of divorce, the father was given a deviation from presumptive amount of child support as permitted by the Child Support Standards Act (CSSA), DRL § 240 (1-b). The factual basis for the deviation was two-fold: the father had the couple's two sons in his residence half the time, and he was directed to pay the [*2]first $2,000 of any "agreed upon" extracurricular activities in which the sons participated. In concluding that a deviation was justified, the court made a series of factual findings that are required under the statute to justify the deviation. DRL § 240 (1-b) (g). The judgment of divorce, incorporating these terms, was never appealed.

Under that she asserts are changed circumstances, the mother requests an upward modification of child support, stating that she is unable to meet the needs of the children on the current amount of child support. As a result of the less-than-presumptive child support, she states that she has incurred substantial debt, including money owed to her father, and legal fees. She also alleges that her "credit is shot" in part because the father filed a petition for bankruptcy to avoid his unsecured debts. She also claims that she lost $30,000 when the couple's home was sold, and that the lost funds were a gift given to her by her grandparents. And finally, she claims that the father promised that he would pay the sums owed to the mother when the qualified domestic relations orders (QDROs) were filed in this matter, but that he never paid any amounts due. The mother also alleges that the father has failed to pay the $2,000 annually for extracurriculars as required, that he has signed the boys up for expensive hockey tournaments without her knowledge, and then refused to pay those expenses.

The father, in response, argues that the mother has failed to meet any of the criteria in the judgment of divorce for a modification of the child support obligation. The judgment provides that a modification of child support is permitted when there is proof of a change in circumstances, the passage of three years, or a 15 percent change in the gross income of either party, measured by comparing their current income with the income at the time of the entry of the judgment of divorce. There is no evidence that either party's income has changed more than 15 percent during that interval and three years have not elapsed since the judgment was entered. The only basis for a modification under the agreement is if a change in circumstances occurred.

In answering the mother's claim for a "change in circumstances," the father returns to the original judicial decision made after a bench trial. In the determinating that a downward deviation from the presumptive amount of child support (to $750 per month) was warranted, the court reached a series of factual conclusions regarding the time that the parties spent - and would spend - with their children and reviewed all the factors for computing child support under CSSA. The court's findings were never appealed and remain the law of the case.

In the mother's application, there is no allegation that any of the findings by the court in its trial decision have changed at all, much less materially changed. To buttress her claim that the child support does not meet the needs of the children, the mother claims that she is in debt as a consequence of inadequate child support. However, her statement of net worth (SNW) — which includes hand-written amendments and marginalia — makes it very difficult to pinpoint how much debt she has incurred, post-divorce, directly as a result of increased child expenses. She lists substantial debts for her own education, which in the court's reading of the mother's SNW, pre-date the divorce. She owes a significant debt for prior legal fees, but this court awarded the mother $3,500 in fees to be paid by the father at the conclusion of the divorce and there is no allegation that it remains unpaid. She also has a substantial debt associated with her car.

Based on the court's reading of the mother's hand-written amended SNW, it appears that if the car, education, and legal fee debts are removed from her SNW, then her current debt for other expenses appears to be less than $10,000. The court notes that the mother's original SNW identified her household debt in 2014 - on the date of commencement of the divorce action - as more than $5,000. The court cannot conclude that this additional current debt is directly attributable to the children. In addition, in her pre-divorce SNW, the mother claimed her net worth was negative $144,208 and, in her current application, her worth is now negative $27,316. From this perspective, her overall balance sheet appears to be in better shape now than it was at the time of the commencement of the divorce action. Based on these undisputed facts, there is simply insufficient proof for this court to conclude that the mother's increase in personal debt is directly related to the cost of the two sons, and the alleged lack of support from the father.

The mother also alleges that she is unable to pay her debts "as a result of having to fund plaintiff and defendant's share of the expenses" for their children. The mother alleges that the sons, who were younger children at the time of the divorce, are now young men and their costs here have accelerated with their age. The Court, having raised sons, is generally familiar with the costs that accompany the aging of male children. But, judicial familiarity and the Court's personal experience are not a substitute for proof: here, there is no specific evidence before the court to show the exact incremental cost of aging children in this case and how those costs have increased the debt load of this parent. In support of her claims, the mother attaches a series of cash register receipts, and other receipts, which she alleges are "additional expenses that the defendant (father) is required to contribute to." However, her claim is unfounded under their agreement and her proof is unavailing. There is no requirement in the agreement that the father pay anything more than his child support, the first $2,000 of extracurricular expenses, and his pro rata share of the extracurricular expenses that exceed $2,000 annually. Contrary to the mother's claims, the agreement does not require the father to make any further contribution.

The mother requests that this court order the father to pay half of the children's "health and non-healthcare expenses" for 2015-2017. The request for payment of 50% of those costs has no basis in the judgment, which requires the couple to pay pro-rata shares of "uninsured health and dental expenses." The judgment makes no reference to "non-health care expenses" and further, as a trigger to the father's obligation to pay, requires evidence that the covered "health and dental expenses" are uninsured. There is no allegation in the mother's application that the receipts attached to her affidavit represented expenses involving health for the sons and expenses which are "uninsured" or, for that matter, there is no evidence that the mother ever sought insurance coverage for those expenses. Without evidence of the mother's compliance with that threshold requirement, this court cannot grant any portion of the mother's application.

Even if the father was required to make a contribution to these expenses, the mother's purported proof of the expenses is difficult to decipher. The exhibits attached [*3]to the mother's application are a hodge-podge of various invoices and receipts [FN3] for items such as LeBron James (that means expensive) items, assorted clothing, bicycles, women's clothing and haircuts. Some of the invoices indicate purchases in Old Forge, New York. Without itemization of each invoice, and a specific representation that these expenses are reasonable and necessary for the sons, this court declines to credit the mother's broad assertion that these invoices represent expenses exclusively for the children. In addition, it is impossible to tell who bought these items, who were they bought for, and who paid for them.[FN4] Even if this court credits the mother's claims that these expenses were for her sons, these are regular children's expenses that are covered by the child support payments. Michael J.D. v Carolina E.P., 138 AD3d 151, 153-154 (1st Dept. 2016) (basic child support, when calculated properly, is presumed to meet all the child's basic needs and thus, the expenses of leisure, extracurricular and enrichment activities, such as after-school clubs, sporting activities, etc., are usually not awarded separately, but are encompassed within the basic child support award).

This court also reviewed the allegation that the mother's credit score was "shot." There is no document in the record which demonstrates a reduction in the mother's credit score or any actual damages created by increased borrowing costs occasioned by a higher credit score. Ziscand v. Eglevsky Ballet Co. of Long Is., 2011 NY Misc. LEXIS 4772 (Sup.Ct. Nassau Cty. 2011); Raiolo v B.A.C Home Loans, 29 Misc 3d 1227 (A) (Civ. Ct. NYC 2010) (no claim for "damage to credit" because plaintiff failed to produce credit report that there has been any change in his rating owing to the actions of the defendant). The mother's credit may be "shot," but there is no evidence in this record that the father's payment of the lesser amount of child support or his alleged failure to pay extracurricular expenses, standing alone, have caused that consequence. The mother suggests that the existing child support provisions have "created tensions that affect their children." There is no evidence, other than this bald assertion, to support this broad allegation and the court declines to credit it.

The remainder of the factual findings by the court after trial to support the deviation in the payment of child support remain unchallenged. There is no proof of any new special needs for the children, no changes in lifestyle for the children, and no evidence of any inequality in the non-monetary contributions of the father. The father continues to cover the cost of health insurance without contribution from the mother and there is no evidence that the children have, at any point, been required to forego any activities as a result of a lack of support from their father.

Importantly, the crux of the mother's argument — that aging children cost more to [*4]raise — has, to some extent been addressed by the Legislature in New York in Domestic Relations Law Section 236[B][9][b][2][ii](A)("[a] court may modify an order of child support where . . . three years have passed since the order was entered, last modified or adjusted"). See Gordon-Medley v. Medley, 2018 NY App. Div. LEXIS 2517 (3d Dept 2018)(wife was entitled under the amendment to a modification of the child support order due to the passage of more than three years, without any requirement that she demonstrate a change in circumstances). The Legislature, by enacting these amendments to the Domestic Relations Law, in essence, suggested that the consequence of a mere passage of time — which might feature an incremental increase in out-of-pocket costs as a result of the children's age — could be considered by a court in a modification application. If the purpose of child support is to meet the anticipated "needs" of the children, then by inserting a three-year time period after which modification may be appropriate and during which the children's "needs" may have increased as they get older, the Legislature has opened the door, in part, to the mother's argument here. But, while the passage of time may bolster the mother's argument in the future, it does not exist now because the three-year time limit has not expired.

Based on the application currently before the Court, there is insufficient evidence of any material changes in any of the factors originally considered and reviewed by the court in its original child support determination that justify any modification of the amount of support. The application to modify support is denied.

The only remaining allegation is that the father has failed to pay $2,000 each year to cover the initial expenses for his children's extracurricular costs. The mother alleges that he has failed to pay these expenses each year. In response, the father seeks a declaration that he has fulfilled his obligations under the agreement. The agreement is unclear on the protocol for payment of the "extracurriculars." There is no definition of the term or what it covers. However, the sons have played hockey in their youth and, at the time of trial, the expenses associated with hockey were discussed. Importantly, there is no requirement in the agreement that the father advance funds for these extracurriculars, it simply requires that he pay the first $2,000. Significantly, the judgement does not reference an annual payment, although the court decision clearly indicates that the father will pay $2,000 annually. There is also no protocol for payment - it simply states that the father shall pay $2,000 of the expenses and the remainder will be paid pro rata.

In her reply affidavit, the mother alleges that the father failed to pay the first $2,000 of the sons' hockey expenses for the calendar year 2016. In response, the father argues that he overpaid the mother $1,300 in child support and he offers documents which support that conclusion. He also argues that he paid $650 for a community summer recreation camp that the sons attended in 2016 and he claims that this expense is properly credited against his obligation to pay the $2,000 annually. Importantly, the mother does not refute his allegation that she was overpaid $1,300 in child support in 2016. She argues instead that the father did not "reimburse her" for the sons's hockey expenses in 2016. In short, the father seeks a credit against his $2,000 annual payment by taking a credit for the overpaid child support. It would exalt form over substance to deny the father a credit against his annual $2,000 extracurricular [*5]payment for the overpaid child support. The father is entitled to the $1,300 credit based on his overpayment of child support.

As mentioned, the father also seeks a second credit for paying the cost of a community recreation camp ($650) in 2016. The mother does not dispute that the sons went to the camp and there is no evidence that she opposed or refused to allow the sons to attend. Under these circumstances, the father's payment of the $650 is a further offset against his $2,000 annual obligation for 2016. The evidence establishes that this program was a "recreation camp" and not daycare, and therefore, this "camp" would be included in the scope of the extracurriculars that the father agreed to annually finance. Finally, the father claims that he bought new skates for one of his sons at a cost of $75 and he produced an email from the mother that indicates that payment should be credited against the father's annual 2016 contribution. That sum, when added with the prior sums - the $1,300 overpayment of child support and the $650 camp expenses - clearly indicates that the father paid his $2,000 in extracurricular costs. There is no evidence that the mother paid any portion of those expenses.

There is evidence in this record that the mother paid some hockey expenses in 2016, but there is no calculation of those expenses and no demand in the affidavits for any specific amount owed by the father as his pro rata share over and above the initial $2,000. For that reason, the mother has failed to meet her burden to establish any amount owed by the father under his obligation to make pro rata contributions for extracurricular expenses over $2,000 in 2016.

For these reasons,

(1)the mother's motion to modify child support in any fashion is denied;(2) the mother's application for a money judgment for health and non-health expenses from 2015 through 2017 is also denied;(3) the father's application to declare the summer camp as an extracurricular expense under the terms of the court order is granted; and,(4) the mother's claim for reimbursement of any sums for extracurricular activities in 2016 is denied.

Finally, this court has considered the father's request for attorneys fees. During the course of the email exchanges between the parties prior to commencing this application, the father and mother quarreled over the payments and which activities their sons should pursue. There are references in the emails between the couple about the prospects of returning to court to obtain a decision regarding the credits and the payments. While ruling in the father's favor on the credits, this court has taken a broad equitable and practical stance in permitting the overpayment of the child support to be a credit against the father's annual extracurricular obligation. Both parties had a justifiable basis for seeking court intervention and, in an exercise of discretion, this court declines to award fees to either party.

SUBMIT ORDER ON NOTICE 22 NYCRR §202.48

Dated: May 16, 2018

________________________________

Richard A. Dollinger, A.J.S.C. Footnotes

Footnote 1:For the overall United States, annual child-rearing expense estimates ranged between $12,350 and $13,900 for each child in a two-child middle-income family. Expenditures on Children by Families, US Department of Agriculture, Center for Nutrition Policy and Promotion, Report No. 1528-2015, March 2017.

Footnote 2:According to the USDA, a 17-year-old costs nearly 20 per cent more annually to raise than an infant. Id.

Footnote 3:The invoices and receipts are the business records of the vendors, not the mother. The records are not certified or otherwise authenticated. They do not establish prima facie validity to be considered by this court. CPLR 4518; Bank of Am., N.A. v Reed, 2018 NY Misc. LEXIS 1198 (Ap. Term 2d Dept 2018); CitiMortgage, Inc. v. Lofria, 2018 NY Misc. LEXIS 737 (Sup.Ct. Suffolk Cty. 2018) (affidavit from corporate records officials provided an admissible evidentiary foundation which satisfies the business records exception to the hearsay rule with respect to the issues raised in this summary judgment application).

Footnote 4:Based on a review of the invoices, it appears that a series of credit cards were used to purchase these items and there is no evidence - or even an allegation - that the mother is the card holder.