Betters v Betters

[*1] Betters v Betters 2019 NY Slip Op 50866(U) Decided on April 26, 2019 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 April 26, 2019
Supreme Court, Monroe County

Matthew D. Betters, Plaintiff,

against

Cathy P. Betters, Defendant.



13/777



Maureen Pineau, Esq.

Rochester, New York

Attorney for Plaintiff

Brian J. Barney, Esq.

Barney & Affronti, LLP

Rochester, New York

Attorneys for Defendant
Richard A. Dollinger, J.

In this matter, the father seeks to discontinue his child support payments for his two sons, alleging that they reside primarily with him. An application to vacate the child support, as ordered in the judgment of divorce, was commenced by the filing of an order to show cause. The application was denied without prejudice, and a hearing was conducted at which the father, mother, and two sons testified.

The parties' two sons are currently 19 and 18 years old. The parties' separation agreement does not specifically address the primary residency of the children, but the father is identified as "the non-custodial parent."[FN1] The father now claims that the older son primarily resides with him. The judgment of divorce provides that the father will pay child support in the amount of $2,980 per month for both children "when there are two unemancipated children" and $2,026 per month when "there is on unemancipated child." The parties also agreed that these amounts shall be fixed until emancipation as a result of the equitable distribution of assets. The separation agreement provides the usual and customary terms for emancipation, mainly the children reaching the age of 21. The mother, arguing for a continuation of child support, claims that the [*2]proof failed to establish the occurrence of any of the specified emancipation events, and also points out that the separation agreement does not include a provision for discontinuance of child support upon a change in the physical residence of the two sons.

The testimony at trial establishes that both sons spend a majority of their time away at school, not living with either parent.[FN2] The older son is in college and the younger son attends a military academy. The testimony further establishes that the sons spent different amounts of time during school vacations and recesses with each of their parents. The testimony contains somewhat conflicting information regarding the parties' oldest son. He testified that he worked for his father in the summer of 2018 and that he resided with him at his residence during that summer. However, while he resided at his father's home, he was unable to pin down the exact times when his father was also there. He also testified that he stayed at his mother's residence a few nights during that summer. And, while he testified that his father provided him with clothes and just about anything else he needed, there was also testimony that the mother was still providing funds for the older son. During cross-examination, he admitted that his mother had assisted him in returning to Rochester after an unfortunate incident involving his roommate. He also acknowledged under cross-examination that his mother had paid for plane tickets to allow him to travel on holidays.

The mothers argues that her older son's testimony is biased in favor of the father and motivated by his desire to advance his father's claims and, "place his mother in a bad light." The oldest son was questioned about whether his father had coached his testimony, and he denied it, but this court does not credit that denial. The younger son, under cross-examination, testified that the father had told his older brother that he should testify favorably for the father in order to continue to participate in the father's largess. This court credits that testimony and applauds the younger son's honesty and courage.

The younger son attends a military academy. He testified that he looked to both of his parents for basic needs. He further testified that his mother had attended an honors ceremony for him at the end of the 2017-2018 school year and that she had bought him sneakers for track. He testified to certain conflicts with his father and said that he was thrown out of his father's house in August 2018 . He testified that he lived with his mother for the rest of the summer.

The father testified and claimed that both parties resided with him at his residence. He could not accurately summarize when he had been in his home in Monroe County during the summer of 2018. During cross-examination, the father did not controvert his youngest son's testimony that he been thrown out of his father's residence. Nor did he controvert the suggestion that he had spoken to his older son about testifying in his father's behalf.

The mother testified that both of her sons had spent time at each of their parents homes in Monroe County in the recent past. She could not provide a specific number of days that her sons spent with one parent or another. She testified that she had expenses for her older son in calendar year 2018 in excess of $13,000. In addition she testified that in 2018 she had spent approximately $9,500 on behalf of her younger son. She also testified that she was paying the cost of her younger son's tuition at the military academy.

Before analyzing the facts and law, the court notes that the father's original order to show cause sought to vacate portions of the support and custody aspects of the judgment of divorce with a determination that the younger son primarily resided with him and that the child support award in the judgment of divorce should be vacated. In the father's petition, he claims that the younger son primarily resided with him in the period from August 2017, through the date of his filing in November 2017. In the trial proof presented in January 2019, both the mother and father focused their testimony on the current status of the two sons. While the father, in his original petition, sought to change the custody of the younger son based on facts in 2017, the court heard testimony on the status of the sons' living arrangements during and throughout 2018. The court accepted the testimony from both sons and the parents on the status of their living arrangements in 2018 without objection. Based on these facts, this Court will consider the facts in 2018 as the basis for any determination regarding the father's continuing child support obligations and will conform the father's pleadings to the proof.[FN3]

Based on these facts, this court concludes that the older son is primarily residing with his father, and that the younger son is living primarily with his mother. In resolving the legal impact of these two facts, the court refers to the separation agreement, which provides that the father's child support obligation is conditioned on the emancipation of the sons. The agreement provides that the father will pay a fixed amount "until an emancipation of one of the parties sons" and then a reduced, but still fixed amount "until such time as both of the parties' sons are emancipated." The agreement further specifies a series of events which constitute emancipation, but at this stage, there is no evidence that any of those events (attaining age 21, marriage, death of the father or mother, entry into the Armed Forces) has occurred. Pursuant to the agreement, neither of the sons is emancipated. Under this theory, the father would continue to make the required fixed payments.

However, the father argues that the older sons' change in residence constitutes a change in circumstances sufficient to justify a modification of his support obligations. To meet this test the change must be "substantial unanticipated and unreasonable." Matter of Gratton v. Gratton, 162 AD3d 1502 (4th Dept 2018); Weinschneider v. Wienschneider, 88 AD3d 806 (2d Dept 2011). In Winnert-Marzinek v. Winnert, 291 AD2d 921 (4th Dept 2002), the Fourth Department analyzed a [*3]somewhat similar circumstance. In that matter, the agreement contained a cut-off of child support at age 21. The agreement did not contain any provisions for a modification of child support if a child changed primary residence. The Fourth Department concluded that because the stipulation is "tellingly silent" on the effect of a child's change of residence on child support, "such an occurrence constitutes an unanticipated change of circumstance" that justified a modification of child support. Id. at 921. In other contexts, the Fourth Department has held that a child's move from one parent's residence to the other parent's residence requires the former parent to pay the current residential parent child support, especially if the child is not independent of either parent's control. Matter of Stabley v. Caci-Stabley, 68 AD3d 1682 (4th Dept 2009). Importantly, in this case, the agreement did not anticipate a change in residence. The agreement never mentions a change in residence and therefore, the actual change must be considered a change in circumstances. Boden v. Boden, 42 NY2d 210, 213 (1977); see contra Tuchrello v. Tuchrello, 204 AD2d 1020 (4th Dept 1994) (change in residence is not a change in circumstances if the agreement contemplated the change and defined the parties' support obligations if the change eventuated). The conclusion to be drawn from these precedents is inescapable: a parent who is the residential parent for an unemancipated child is entitled to child support for the child and, as a corollary, is no longer liable for paying child support to the parent who does not house the child.

In reaching this conclusion, the court has considered language in the settlement agreement. The couple agreed that "these amounts (the amounts set forth in the agreement) shall be fixed until emancipation as a result of the equitable distribution of assets." The language, seen in one light, could be read to preclude this court from making any adjustment in the support payments other than the reduction specifically provided; i.e., from $2,980 per month when there were two unemancipated children to $2,026 per month for one emancipated child. Neither parent argued the impact of this language in their submissions. Regardless, this court declines to read this language as a limitation on the court's ability to direct a recalculation of child support under the Child Support Standards Act ("CSSA"). The court notes that the parties, in their agreement, never suggested that they were opting out of the statutory and common law principle that an unforeseen and unanticipated change in circumstances would permit a change in child support payments.[FN4]

Therefore, the older son's residence with his father constitutes a change of circumstances that allows a recalculation of his child support obligations. In considering the extent of that modification, this court notes that the agreement does not address how the child support should be modified if a change in circumstances exists. The agreement states that if one child is "emancipated," then the child support will be modified according to the agreement. In this instance, the older child is not emancipated, as that term is defined in the agreement. The older son meets none of the listed contractual criteria for emancipation. The agreement provides no guidance to this court and the calculation of child support should be handled de novo, consistent with the CSSA, and a recognition that the older son primarily resides with the father and the [*4]younger son primarily resides with the mother. Neither party in this proceeding produced a calculation of child support outside the context of the agreement. The father sought to only vacate the award of child support in his order to show cause. This court is partially vacating that award, and because the agreement did not anticipate a change in residence, the court declares that the father's obligation should be adjusted consistent with the CSSA. DRL § 240 (I-b) (f). Counsel should prepare an order which uses the CSSA to calculate the father's support obligation based on this decision.

The final issue is whether and to what extent this court may alter the child support retroactive to the date of application by the father or some other date after the older son began to live with his father. The proof at trial establishes that the older son began to live with his father no sooner than the summer of 2018, approximately July 1, 2018. The application to modify child support was filed in late 2017. At the time it was filed, the sons were residing with their mother. The father, in his trial testimony failed to show by the preponderance of the evidence that either son was primarily residing with him during 2017 or, for that matter, in the first six months of 2018.

The change in circumstances occurred when the older child elected to live primarily with his father, but this change was not extant at the time the father filed his applications - it occurred well after. However, both parties offered proof regarding the sons living arrangements in the summer of 2018 and the court permitted that testimony without objection. Therefore, in considering the date that a recalculation of child support would be permitted, the date when the older child elected to live — and did in fact live — permanently with the father would constitute the date when the father was entitled to a recomputation of his child support obligations.

Under well-established principles, this court cannot order the recoupment of child support. Haggerty v. Haggerty, 169 AD3d 1388 (4th Dept 2019).But, under equally well-established principles, a court can modify child support obligations back to the date that a request for modification was filed. In Cohn v. Paprin, 29 AD3d 350 (1st Dept 2006), the payor of child support claimed entitlement to recoupment of child support from the date of commencement, but the court held he was only entitled to recoupment as of the date of a custody agreement, a date well after the commencement. The court reads this precedent as permitting an offset effective the date that a payor can establish entitlement to modified payments and has properly commenced a proceeding to make such a claim. In this instance, the court declines to modify the obligation back to the date of filing because, as the proof establishes, the application was not justified when the father filed it and only subsequent events established the grounds for a modification. Under these unusual circumstances, the modification should be retroactive to the date when the older son ceased to primarily reside with his mother. Therefore, the father is entitled to a recomputation of his child support obligations, effective on July 1, 2018, the date the older son ceased to primarily reside with his mother and began to spend the summer living with his father. As noted earlier, the child support calculation should be handled consistent with established rules under the CSSA.

Finally, while the father is not entitled to recover the overpayment of child support occasioned by his son's change of address, he is entitled to a credit against other contractual obligated expenses. The Court of Appeals opened the door to similar credits in both Johnson v. Chapin, 12 NY3d 461 (2009) and Spencer v. Spencer, 10 NY3d 60 (2008). While confirming [*5]that recoupment was inappropriate for overpaid child support, the court in both Johnson v. Chapin and Spencer v. Spencer held that credits for overpayment of child support, in some instances, made be permissible. As another trial court said, there is "an underlying principle; a credit should be allowed when it would be manifestly unfair to deny it." F.S. v. K.O., 42 Misc 3d 466 (Fam. Ct. Albany Cty 2013). Other courts have recognized that overpayment of child support can offset add-on expenses, including medical and educational expenses. Maksimyadis v. Maksimyadis, 275 AD2d 459 (2d Dept 2000) (overpayment of child support credited against unreimbursed medical expenses); see also McGovern v. McGovern, 148 AD3d 900, 902 (2d Dept 2017) (use overpayment for educational expenses).

In reaching this conclusion, the court has surveyed the authorities cited by the father, but can find none that permits a direct recoupment of overpaid child support. In D'Amato v. D'Amato, 132 AD3d 1424 (4th Dept 2015), the court, while allowing a credit for maintenance paid during the pendency of the action, specifically affirmed the lower court's denial of a credit for overpayment of child support. The Second Department in Walker v. Walker, 130 AD3d 805 (2d Dept 2015) also permitted a credit for overpaid maintenance, but never mentioned child support. See also Smulczeski v. Smulczeski, 128 AD3d 670 (2d Dept 2015) (trial court erred in granting payor a credit for overpaid child support).

Under these circumstances, the father is entitled to such a credit for the overpayment of child support. Once the appropriate child support payments are calculated back to the date when the older son changed his primary residence, the father is entitled to a credit.

Dated: April 26, 2019

____________________________________

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

Footnote 1: See Agreement, p. 19, par. 6.

Footnote 2: Furthermore, both sons are now over age 18 and hence, no custody order can be made for them. Gugliara v. Veras, 2019 NY App. LEXIS 1791 (2d Dept 2019).

Footnote 3: Under CPLR 3025 (c), a party may amend a pleading "at any time by leave of court . . . before or after judgment to conform to the evidence." The Court of Appeals has recognized that, absent prejudice, courts are free to permit amendment even after trial. Kimso Apts. LLC v. Gandhi, 24 NY3d 403, 411 (2014); see also Murray v. City of New York, 43 NY2d 400, 405 (1977) (where no prejudice is shown, the amendment may be allowed 'during or even after trial'). In this instance, neither party moved to conform the pleadings to the proof, but this court, in its own discretion, will nonetheless do so because both parties presented evidence regarding the current state of the sons' residence and focused the hearing on the residence of the sons in 2018. Neither side ever raised the issue of prejudice caused by considering facts in 2018 that were not pled in the 2017 application. To achieve judicial economy and achieve a result consistent with the proof, the court will amend the pleadings to the proof. This court also notes that the father, in his order to show cause, reserved his right to present "other and further evidence of the change," which supports the court's exercise of discretion here.

Footnote 4: The parties did opt out of the statutory recalculation of child support based on passage of three years or a 15 percent change in a parties income. Agreement, p. 23; DRL § 236 B (9) (b) (2) (ii); Family Court Act § 451 (2) (b).