In support proceeding, Family Court erred in awarding attorney fees where Father was not given an opportunity to challenge the appropriateness or amount requested
Matter of Camarda v. Charlot, 2018-13247; Matter of Camarda v. Charlot, 2018-13248
In February 2015, the father filed a petition for a downward modification of his child support obligation. A Support Magistrate dismissed the father’s petition, reasoning that he failed to establish a substantial change in circumstances to warrant a downward modification. The father later filed in May 2018, seeking a downward modification “on essentially the same grounds that he had asserted in 2015.” The mother moved to dismiss the petition and for an award of attorney’s fees. In July 12, 2018, the parties attended a court proceeding, where the Support Magistrate orally dismissed the father’s petition and indicated that the branch of the mother’s motion for an award of attorney’s fees would be addressed in the order, without providing the father an opportunity to be heard. In a July 2018 order, the Support Magistrate granted the mother’s motion to dismiss the father’s petition and for the requested attorney’s fees. In a September 2018 order, the Family Court denied the father’s objections to the dismissal of his petition and the award of an attorney’s fee to the mother. The father appealed.
The Second Department found that the father failed to establish a substantial change in circumstances prior to the determination of his 2015 petition (Family Ct Act § 451[a]; see Matter of Bono v. Pitre, 97 AD3d 743, 743). Thus, he was prevented from “relitigating the same facts” he had in relation to his 2015 petition (see Matter of Solis v. Marmolejos, 50 AD3d 691, 692; Matter of Lacome v. Marius, 4 AD3d 430, 430). Therefore, the Family Court properly denied the father’s objections by granting the mother’s motion.
However, the Family Court should have granted the father’s objection to so much of the order that granted that branch of the mother’s motion for an attorney’s fee award to the extent of directing a hearing (see Santora v. Nicolini, 237 AD2d 504, 506). Based on the circumstances, the father was not provided with the opportunity to challenge the appropriateness of the award or the amount sought (see Santora v. Nicolini, 237 AD2d at 506). The father’s objection is granted to the extent of vacating that portion of the July 2018 order and the matter is remanded to the Family Court.
Family Court misinterpreted parties’ Stipulation requiring recalculation of child support and erred in increasing Father’s obligation
Matter of D’Sa v. D’Sa, 2019-03494
The parties entered into a stipulation of settlement, in which they agreed that the father’s gross income was approximately $99,000 per year and that he would pay $1,000 per month in child support until January 2018. The stipulation also provided, “Effective January 22, 2018 until the emancipation of both children, the [father’s] child support payments shall be pursuant to the Child Support Standards Act with appropriate calculations for maintenance and reflective of the income ranges of the parties.” Further, the stipulation expressly provided, “The parties to this Agreement have been advised by their respective attorneys of the New York Domestic Relations Law, 236(B)(9)(b) and the Family Court Act 461(b), effective October 12, 2010, providing for the modification of an Order of Child Support…and that a reduction in income shall not be considered as a ground for modification unless it was involuntary and the party has made diligent attempts to secure employment commensurate with his or her education, ability, and experience.”
The father filed a petition in October 2018, alleging that, pursuant to the judgment of divorce and stipulation of settlement, his child support obligation would be recalculated as of January 1, 2018, there had been a substantial change in circumstances, and his income decreased 15 percent. The Support Magistrate found, after a hearing, that the parties consented, pursuant to their stipulation, that a reduction in income shall not be considered as a ground for modification of child support obligations unless it was involuntary, and the father failed to prove so. The Support Magistrate based her calculation on the father’s gross income of $99,000 annually, directing him to pay $1,208 per month in child support retroactive to January 18, 2018.
The father objected, arguing that the Support Magistrate erred in interpreting the parties’ stipulation of settlement and by increasing his child support payments. The Family Court denied his objections, reasoning that the parties had stipulated that the father’s child support obligation was “zero pending the re-calculation of his child support obligations, and therefore, the father’s petition for downward modification did not state a claim upon which relied could be granted.” The father appealed.
The Second Department disagreed with the Family Court’s interpretation of the parties’ stipulation of settlement. The father’s child support obligation under the stipulation of settlement “was not zero pending the recalculation,” rather, it was the amount determined by the Child Support Standards Act. The parties agreed that the father’s child support obligation would be recalculated as of the January 20, 2018 payment. Contrary to the Support Magistrate’s interpretation, the parties did not agree that any income reduction would not be considered as a ground for modification unless it was involuntary and the party attempted to secure employment comparable to his education, ability, and experience. Instead, a plain reading indicates that the parties simply acknowledged that their attorneys advised them of the law. Thus, the matter must be remanded to the Family Court for a new hearing and new determination of the father’s modification petition.