M.S. v M.S.

[*1] M.S. v M.S. 2021 NY Slip Op 50258(U) Decided on January 4, 2021 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 January 4, 2021
Supreme Court, Monroe County

M.S., Plaintiff,

against

M.S., Defendant.



14/11073



Elizabeth M. Shost, Esq.

Law Office of Elizabeth Jewett Owen

Attorney for Plaintiff

Pittsford, New York

Peter J. Glennon, Esq.

The Glennon Law Firm, P.C.

Attorney for Defendant

Rochester, New York
Richard A. Dollinger, J.

The British political writer Ernest Benn once said that "[p]olitics is the art of looking for trouble, finding it whether it exists or not, diagnosing it incorrectly, and applying the wrong remedies."[FN1] The same might be politely said of the parties' attempts in this matter to interpret the child support provision of their Stipulation of settlement as this dispute evades the best diagnostic efforts and arguments of both counsel and leads the Court to reconsider — and revise — its earlier determination and the resultant remedy.

This couple were divorced in 2017. The stipulation calculates the father's support obligation for his two unemancipated children based upon his then-current income, with deductions for medicare and self-employment taxes. His net income that year was $451,709. The mother's income in the same year was $1,000. In their agreement, the couple applied the resulting percentages of income to the then-existing child support "cap" of $143,000. NY DRL § [*2]240(1-b)(c)(3); Spinner v Spinner, 2020 NY App. Div. LEXIS 6513 (2d Dept 2020). The calculation in the agreement does not subtract the father's maintenance payment to the mother of $84,000 per year from his income, nor does the agreement add it to the mother's income. The Stipulation further states that it "is consistent with the Child Support Standards Act ("CSSA"), and there are no deviations therefrom." Despite the calculation in the agreement and the language regarding compliance with the CSSA, now that it is time to re-calculate support upon the emancipation of one of the parties' children, both parties argue that the initial calculation was inaccurate and inconsistent with the statute.

By way of brief background, this matter originally came before the Court by way of the father's motion for a downward modification of his support obligation, based primarily upon the emancipation of one of the two children, as contemplated by the parties' Stipulation. The mother cross-moved for various relief, including, as most relevant here, to base the father's new support obligation upon his full income, which far exceeds the cap, or, in the alternative, to apply the present-day cap of $154,000. After argument, the Court determined that the new support obligation would be determined pursuant to the CSSA, applying the new, higher, cap. After affording the parties an opportunity to reach a global settlement of the remaining issues raised on the mother's cross-motion, which efforts came largely to naught, the Court invited each to submit proposed orders. The mother's proposed order stated that the new support obligation would be based upon "Father-Petitioner's 2018 actual full income and applying the relevant statutory income cap." The father's proposed order stated that the new award would be calculated "applying the relevant statutory income cap and using the parties' most recently filed income tax returns, resulting in a revised award of $1,832.20 per month." The difference in the parties' views centered on the inclusion of maintenance in the mother's income (as well as, to a lesser extent, the exclusion of such maintenance from the father's income). The mother argued that the Stipulation called for support to be based upon the parties' incomes without regard to maintenance, while the father argued that, regardless of the mathematical calculation that was set forth in the original stipulation, the Stipulation called for support to be calculated "consistent with the Child Support Standards Act." Neither party argued - or argues today - that anything but current law would apply to this matter. The Court, after running its own calculation, initially concluded that the father's calculation was consistent with the current CSSA, and, after revising it in other respects, signed the father's proposed order.

The mother now moves to reargue, and the father, predictably, supports the Court's signed order and the calculation contained therein. In different ways, both parties attack the initial calculation contained in the Stipulation as contrary to the CSSA, despite the language in the Stipulation declaring that the calculation complies with the CSSA. The mother argues that, while the father's calculation may be "technically correct" under the CSSA, the parties had agreed by their stipulation to "deviate" from the CSSA by not "factoring in maintenance," and basing the calculation on the parties' actual incomes. The father, on the other hand, argues that the agreement unequivocally states that support is to be calculated "consistent with the Child Support Standards Act," and that, at most, the parties' initial failure to factor in maintenance was "an error in the original child support calculation that benefitted [the mother]," but should not be carried forward. Indeed, as the father argued, to deviate from the CSSA, the stipulation would have had to constitute a valid opting-out agreement, which it does not. The Court concludes that [*3]both positions have elements of the correct answer, but both, in the end, are wrong, though not for any reason that either articulates. In this Court's view, the new support calculation must be made applying the law as it existed at the commencement of this action, under which the initial calculation was completely correct.

The father is clearly, and as even the mother concedes, "technically correct" that, under the law as it exists today, in calculating child support, any maintenance payments are subtracted from the payor's income, and added to the payee's income (see DRL § 240 [1-b] [b] [5] [iii]; see generally W.S. v A.S., 64 Misc 3d 1210(A) [Sup Ct 2019]). That rule, however, only came into being in January 2016, as a result of an amendment of Section 240 of the Domestic Relations Law (see L. 2015, ch. 387, effective January 24, 2016). Prior to that, in the Fourth Department, the general rule was that maintenance was deductible from the payor's income for purposes of the child support calculus, but it was not added to the payee's income (see Johnston v Johnston, 63 AD3d 1555, 1556 [4th Dept 2009]; Simon v Simon, 55 AD3d 477, 477-78 [1st Dept 2008]). And even that rule was subject to the caveat that "maintenance paid or to be paid should be subtracted from the payor's income only where 'the order or agreement provides for a specific adjustment ... in the amount of child support payable upon the termination of alimony or maintenance' " (Schmitt v Schmitt, 107 AD3d 1529, 1530 [4th Dept 2013]). Where, as here, the maintenance obligation outlasts the child support, the pre-2016 law dictates that there can be no such adjustment in child support, and hence no deduction from the payor's income is allowed and the maintenance payments are not added to the wife's income under CSSA. (see id.; Huber v Huber, 229 AD2d 904, 905 [4th Dept 1996]).

Thus, contrary to either parties' argument, the parties' Stipulation in this case -which neither deducted maintenance from the father's income, nor added it to the mother's — fully comported with the CSSA as it existed prior to January 24, 2016. While the Stipulation was entered in 2017 - after the effective date of the new law - the case was commenced in 2014, and child support should be calculated "[u]nder the law as it existed when this action was commenced" (C.G. v F.G., 53 Misc 3d 229, 235 [Sup Ct 2016]; see W.S. v A.S., 64 Misc 3d 1210(A) [Sup Ct 2019] [CSSA "amendments were made effective for cases filed on or after January 26, 2016"]; R.I. v T.I., 51 Misc 3d 1215(A) [Sup Ct 2016]). While neither party raised the precise issue of what law should be applied to the Stipulation, the mother has, from the start, argued that the Stipulation calls for the father's income to be calculated based on his actual income, with no adjustment for maintenance and similarly, the wife's income is calculated without including the maintenance payments. The Court's analysis here simply invokes the rules under CSSA, as it existed at the time of the original stipulation, to demonstrate that this argument is, ultimately, correct.

In addition, holding otherwise would deprive the mother of the benefit of her bargain. In the stipulation, the parties agreed that the maintenance payments would not be added to the wife's income when calculating her contribution of child support, which, as described above, was consistent with the then-current version of CSSA. The Legislature later changed the rules reagrding the inclusion of maintenance in calculating child support but the change was only effective prospectively. The Legislature left prior agreements, which excluded maintenance from a recipient's income in calculating child support, in effect. This Court will not give that Legislative change retroactive effect and change this couple's agreed method of calculating their [*4]income for child support purposes. Accordingly, the mother's motion to reargue is granted to the extent of re-calculating the father's support obligation for one child, based on his earnings as reflected in his 2019 tax returns, with no adjustments for payment or receipt of maintenance by either party.

Turning to the father's cross-motion, the mother's responses to the father's document demands and interrogatories are deficient and she has waived any objections except as to palpably improper demands. The father is entitled to a conditional order precluding the mother from offering proof as to the issues raised in those demands absent proper responses within 10 days of the issuance of such a conditional order. The deposition notice served by the mother is stricken as untimely. There shall be no further extension of the discovery deadline. The request to strike the mother's cross-motion is denied; the request for attorney's fees is deferred.

The foregoing constitutes the decision of the Court.

SUBMIT ORDER ON NOTICE. 22 NYCRR 202.48.

DATED: 1/4/21

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

Footnote 1:See https://en.wikipedia.org/wiki/Ernest_Benn;. This quote is often misattributed to Groucho Marx, with slightly different wording ("Politics is the art of looking for trouble; finding it everywhere, diagnosing it wrongly, and applying unsuitable remedies")