In Naomi C v Russell A, --- N.Y.S.2d ----, 2008 WL 304936 (N.Y.A.D. 1 Dept.) the Appellate Division affirmed without a hearing Court’s dismissal of a petition to modify a custody order. The Appellate Division pointed out that with the parties present, the court asked the Law Guardian, on the record, to discuss the position of the 10-year-old child regarding how well the current custody arrangement was working. Although the court was warranted in dismissing the petition on its face, the questioning of the Law Guardian (now called Attorney for the Child) by the court was " something that should not be repeated". Although the court was correct to disallow the "cross-examination" of the Law Guardian by petitioner's counsel, the court should not consider the hearsay opinion of a child in determining the legal sufficiency of a pleading in the first place. Most importantly, such colloquy makes the Law Guardian an unsworn witness, a position in which no attorney should be placed. It emphasized that the attorney for the child is subject to the ethical requirements applicable to all lawyers, including but not limited to becoming a witness in the litigation. (Citing Rules of the Chief Judge [22 NYCRR] 7.2[b] ).

In Bailey v Bailey, --- N.Y.S.2d ----, 2008 WL 275056 (N.Y.A.D. 4 Dept.) the Appellate Division held that although the court properly determined that plaintiff was entitled to retain the amount of $43,000 she had removed from the parties' joint HSBC checking accounts containing $66,000, the court erred in allocating the entire amount as separate property. "The creation of a joint account vests in each tenant a present unconditional property interest in an undivided one half of the money deposited, regardless of who puts the funds on deposit The creation of a joint account vests in each tenant a present unconditional property interest in an undivided one half of the money deposited, regardless of who puts the funds on deposit" (Parry v. Parry, 93 A.D.2d 989, 990; see Nasca v. Nasca, 302 A.D.2d 906). Thus, each party was entitled to a distributive award of $33,000 from that account. The Appellate Division held that the court properly distributed the various retirement accounts. The appreciation to defendant's Vanguard Money Market Reserves Account was marital property because plaintiff indirectly contributed to the appreciation of this asset by handling the household matters, thereby permitting [defendant] the freedom to devote energy to his financial endeavors. The remaining accounts in question contained commingled marital property and separate property, and defendant failed to trace the source of the funds [that he contended were separate property] with sufficient particularity to rebut the presumption that they were marital property.

In Mattioli v Mattioli,--- N.Y.S.2d ----, 2008 WL 275078 (N.Y.A.D. 4 Dept.) the Appellate Division held that Supreme Court properly refused to treat the former marital residence, which was titled in the names of plaintiff's parents or in one of their names, as marital property subject to equitable distribution, despite the fact that plaintiff paid her father $42,899 during the marriage as a down payment towards its purchase. The court erred, however, in basing its decision solely on the fact that title to the property was held by one or both of plaintiff's parents, rather than by plaintiff and/or defendant. That fact was not necessarily dispositive because Domestic Relations Law 236(B)(1)(c) defines marital property as "all property acquired by either or both spouses during the marriage and before the execution of a separation agreement or the commencement of a matrimonial action, regardless of the form in which title is held." Thus, the dispositive issue was whether plaintiff and/or defendant held "any valuable property rights" in the former marital residence, inasmuch as property is "not marital property [where] neither the wife nor the husband [holds] any valuable property rights" in it (Pulitzer v. Pulitzer,134 A.D.2d 84, 88). While the parties in this case alluded to an agreement between plaintiff, defendant, and plaintiff's parents for the purchase of the former marital residence, no written agreement for the purchase and sale thereof was presented to the court. In the absence of a written contract, there was no evidence before the court that either plaintiff or defendant held the requisite "valuable property rights" in the former marital residence to render it marital property. The Appellate Division held that the court erred in applying the doctrine of judicial estoppel in precluding defendant from presenting evidence of funds received by plaintiff from the sale of the former marital residence. Defendant attempted to establish that the $8,000 to $9,000 received by plaintiff from the sale of the former marital residence was marital property in the form of appreciation in the value of the property resulting from improvements he made to it during the marriage. The Supreme Court erred in relying on its decision in Matter of Miller (Berti) (1 AD3d 885) when it applied the doctrine of judicial estoppel to the former marital residence. The record established that during the marriage defendant twice filed for bankruptcy under chapter 7 of the Bankruptcy Code and received discharges, and that he claimed in both bankruptcies that he was single and did not list the former marital residence as an asset in his bankruptcy schedules. The court thus determined that judicial estoppel prevented defendant from claiming any interest in funds received upon the sale of the former marital residence. That was error, inasmuch as the discussion of the doctrine of judicial estoppel in Miller was in the context of a bankruptcy proceeding, while here the issue concerned the property rights of the parties in a matrimonial action. [M]arital property rights are determined upon the granting of a divorce", and defendant was not required to list possible future rights to marital property in the bankruptcy schedules (see 11 USC s 541[a][2][A] ). It modified the judgment by remitting the matter to Supreme Court to reopen the proof at trial to permit defendant to submit evidence that the funds received by plaintiff from the sale of the former marital residence were marital property.

Third Department Holds "Substantial Change in Circumstances" Standard Correct Where Supreme Court Refers Child Support to Family Court

In Zwickel v Szajer,--- N.Y.S.2d ----, 2008 WL 191640 (N.Y.A.D. 3 Dept.) in April 2003 the Support Magistrate entered an order for child support. Shortly thereafter, plaintiff commenced an action for divorce where the issue of child support was referred to Family Court. At about the same time, plaintiff commenced a proceeding, pursuant to Family Ct Act article 4, alleging a violation of the April 2003 order. After a hearing on both matters, the Support Magistrate found That defendant was in willful violation of its prior order and, by separate order, that there was no substantial change in circumstances to warrant an upward modification of child support. Plaintiff's objections were denied by Family Court. The Appellate Division agreed with Family Court that the Support Magistrate applied the correct standard in determining plaintiff's application for an upward modification of the April 2003 order of support. It held that in a matrimonial action, unless a prior support order from Family Court is continued by Supreme Court, the prior order terminates when Supreme Court makes a new support determination. As no such order was issued by Supreme Court, instead referring the matter to Family Court to determine the application, the "substantial change in circumstances" standard was correctly applied upon plaintiff's application for a modification of the Support Magistrate's prior order of support (Citing Cynoske v. Cynoske, 8 A.D.3d 720, 722-723 [2004] ). Ed Note: But see Blauner v Blauner,60 App Div 2d 215 ( 1^st Dept.1977) holding that when divorce follows separation the court may consider child support de novo. The same rule was applied to alimony in Kover v Kover, 29 N.Y.2d 408 (1972).

Failure to Provide Client with Statement of Client's Rights and Responsibilities Constitutes Violation of DR 2-106(f). Failure to Send Bill During One and One-half Year Divorce Proceeding Violates DR 1-102(A)(5).

In Levi v Levi, 848 N.Y.S.2d 225 (2d Dept., 2007) the parties originally appeared before a Justice of the Supreme Court, Kings County and the action terminated abruptly following allegations that the plaintiff attempted to bribe the former Justice for a favorable outcome. At a criminal proceeding in 2004, the plaintiff admitted that he conspired to bribe the former Justice in the pending divorce action, providing a $10,000 payment to influence a favorable outcome on his behalf. Following a second trial, the Supreme Court equitably distributed the sole marital asset, the marital residence, entirely to the defendant, based in part, on the egregious behavior of the plaintiff in attempting to bribe the former Justice. The Appellate Division affirmed. It held that Supreme Court properly exercised its discretion in finding that the plaintiff's attempt to bribe the former Justice constituted egregious marital fault to be factored into the equitable distribution award in addition to other considerations.

In Zwickel v Szajer,--- N.Y.S.2d ----, 2008 WL 191640 (N.Y.A.D. 3 Dept.) in April 2003 the Support Magistrate entered an order for child support. Shortly thereafter, plaintiff commenced an action for divorce where the issue of child support was referred to Family Court. At about the same time, plaintiff commenced a proceeding, pursuant to Family Ct Act article 4, alleging a violation of the April 2003 order. After a hearing on both matters, the Support Magistrate found that defendant was in willful violation of its prior order and, by separate order, that there was no substantial change in circumstances to warrant an upward modification of child support. Plaintiff's objections were denied by Family Court. The Appellate Division agreed with Family Court that the Support Magistrate applied the correct standard in determining plaintiff's application for an upward modification of the April 2003 order of support. It held that in a matrimonial action, unless a prior support order from Family Court is continued by Supreme Court, the prior order terminates when Supreme Court makes a new support determination. As no such order was issued by Supreme Court, instead referring the matter to Family Court to determine the application, the "substantial change in circumstances" standard was correctly applied upon plaintiff's application for a modification of the Support Magistrate's prior order of support (Citing Cynoske v. Cynoske, 8 A.D.3d 720, 722-723 [2004] ). Ed Note: In Blauner v Blauner, 60 App Div 2d 215 ( 1^st Dept.1977) the First Department held that when divorce follows separation the court may consider child support de novo. In Kover v Kover, 29 N.Y.2d 408 (1972) the Court of Appeals held that alimony may be considered de novo).

In Matter of Martin v Martin, --- N.Y.S.2d ----, 2007 WL 4530824 (N.Y.A.D. 3 Dept.) petitioner father and respondent stipulated to a joint custody arrangement, whereby the father would pay child support of $200 per week. In 2004 the mother sought a finding that the father had willfully violated the order of support and the father sought modification of his support obligation. In his petition, the father listed verbal agreements and health as the change in circumstances justifying modification. On the first day of trial, the father's attorney attempted to introduce medical records but, after the mother objected, the Support Magistrate refused to receive the records "at this time," apparently in the absence of proper authentication. The father testified that in the spring and summer of 2003 his business collapsed, he was diagnosed with an illness which crippled his ability to work until approximately January 2005 and, between September 2003 and May 2004, he lived with the mother and their children under an agreement that he would perform the duties of a "stay-at-home parent" in lieu of support payments. On the second day of trial a month later, the father attempted to introduce the testimony of his therapist who was apparently prepared to testify that during an addiction counseling session the parties had "agreed to have [the father] provide services instead of providing child support dollars." However, the mother objected to such testimony on the ground that it was privileged. The Support Magistrate adjourned the trial for research on the issue of privilege. Thereafter, the Support Magistrate determined that the mother was involved in the counseling only for the purpose of assisting with the father's therapy and that the therapist would be permitted to testify as a fact witness regarding the alleged agreement. On the date of that decision--May 5, 2005--the Support Magistrate set the next date for the continuation of the trial for June 28, 2005. On June 28, 2005, almost eight weeks after her decision, the Support Magistrate was prepared to accept the therapist's testimony. The father's attorney, reported to the court that the therapist was not available and requested that another date be set for the therapist's testimony or, in the alternative, that the mother consent to the receipt in evidence of the therapist's affidavit, which had been submitted previously in support of the father's earlier assertion that the therapist should be allowed to testify. The mother objected to both of these options, and the Support Magistrate agreed. The father's testimony resumed and it was revealed that he had recently been incarcerated on pending criminal charges. The mother testified that the father had indeed resided with her and the children at times and that she had attended therapy sessions with him, but she asserted that they had not entered into any agreement to suspend child support. After again denying the father's requests for an opportunity to call the therapist or introduce the therapist's affidavit, the Support Magistrate ruled from the bench dismissing both petitions based on the father's failure to establish a change in circumstances and finding that he had willfully violated a support order. In her ruling, the Support Magistrate noted that no medical evidence of the father's alleged inability to work due to diminished health was introduced, incarceration is not a basis to modify an order of support, and no credible evidence supported his claims regarding the alleged arrangement between the parties. She issued an order finding that he willfully violated an order of support. Family Court affirmed. The Appellate Division rejected the father's contention that the Support Magistrate's refusal to adjourn the trial so that a key witness could be located amounted to an abuse of discretion and that the decision to not consider the therapist's affidavit in place of his testimony was error. "The grant or denial of a motion for 'an adjournment for any purpose is a matter resting within the sound discretion of the trial court. Here, it was clear that the father's inability to produce the therapist resulted from his counsel's lack of due diligence in preparing for the hearing. His counsel conceded that he never spoke directly with the therapist--simply asserting that a letter was sent and it never came back so "[he] expected him to be [t]here"--and there was no indication in the record that any pretrial attempt was made to obtain a continuance or to reschedule. As for the refusal to admit the therapist's affidavit into evidence, the father failed to suggest any basis on which admission of that hearsay document would have been permissible. The court was persuaded by the father's ineffective assistance of counsel claim based upon his attorney's failure to present sufficient evidence regarding his medical condition and to ensure that a key witness was present at trial. Under Family Ct Act 262(a)(vi), a person has the right to the assistance of counsel in any proceeding before the court in which an order or other determination is being sought to hold such person in contempt of the court or in willful violation of a previous order of the court. The standard for effective assistance of counsel here is whether, viewed in its totality, the representation was meaningful and whether actual prejudice was suffered as a result of claimed deficiencies. The father's initial modification petition and his defense to the willful violation allegations turned on his health-related inability to work due to his treatment for a serious illness and an alleged agreement with the mother to suspend his support payments, and his counsel did not get important evidence admitted that would have advanced these assertions. Counsel failed to properly obtain authentication for the father's medical records, call any witnesses to testify as to the effects of the father's illness, subpoena the therapist, or otherwise ensure his availability as a witness on the trial date. Family Court made specific reference to the lack of medical evidence in its decision, finding that the father had not refuted the mother's prima facie showing of willfulness, and affirmed the specific finding that no credible proof was offered to support the father's assertions of an agreement between the parties--the precise issue on which the therapist was to testify. Had this proof been admitted into evidence, the father would have had independent verification for his assertions which may have relieved him of several months worth of support obligations and may have undermined the allegation of willfulness. Taken together, the omissions constituted a failure to meaningfully represent the father, and he was entitled to a new hearing on his initial modification petition and the mother's violation petition.

In Matter of Bartlett v Jackson,--- N.Y.S.2d ----, 2007 WL 4722934 (N.Y.A.D. 3 Dept) the mother argued on appeal that Family Court incorrectly admitted hearsay evidence and then relied upon such evidence in its custody decision. The Appellate Division held that in custody proceedings involving allegations of abuse or neglect, hearsay statements of the child pertinent to those allegations may be admitted and considered so long as they are corroborated by other evidence.

Go To Top of Page

Father Directed to Put 50% of Child Support Obligation in Escrow until the Mother Can Certify Compliance with Visitation Order and Absence of Interference with Father's Visitation Rights

In Matter of Lew v Sobel,--- N.Y.S.2d ----, 2007 WL 4555624 (N.Y.A.D. 2 Dept.) the Appellate Division noted that a custodial parent's deliberate frustration of, or active interference with, the noncustodial parent's visitation rights can warrant the suspension of future child support payments (citing Domestic Relations Law 241) In view of the evidence presented at the hearing and the Supreme Court's determination that the mother deliberately had interfered with the father's visitation rights, it directed the father to pay 50% of his child support obligation to the mother's attorney, to be held in an escrow account until the mother can certify, to the satisfaction of the Supreme Court, her compliance with the visitation provisions of the first order dated April 28, 2006, and the absence of her interference with the father's visitation rights. When the mother can establish to the satisfaction of the court that she was not interfering with the father's visitation with the children, there will then be a basis to direct the mother's attorney to release, to the mother, the child support payments held in escrow. It also held that under the circumstances of this case, the Supreme Court should have reapportioned the parties' responsibility for the fees of the therapeutic visitation facilitators, the Law Guardian, and the forensic evaluator employed during the course of the proceeding so that the mother was responsible for 75% of such fees and the father was responsible for 25% of such fees.

Strict Application of Tropea Factors Not Required When There No Prior Custody Award

In Streid v Streid, --- N.Y.S.2d ----, 2007 WL 4440940 (N.Y.A.D. 3 Dept.) the father filed a petition seeking custody of the children, after the mother removed them from the marital home and relocated to Georgia without his consent. Family Court awarded custody to the mother, provided that she remained in New York. The Appellate Division affirmed. It noted that the mother was correct that a strict application of the factors set forth in Matter of Tropea v. Tropea (87 N.Y.2d 727 [1996] ) is not required when there is no prior award of custody (citing Furman v. Furman, 298 A.D.2d 627, 628-629 [2002], lv dismissed and denied 99 N.Y.2d 575 [2003] ). Nevertheless, a parent's decision to reside in a distant locale is a very important factor among the constellation of factors to be considered in arriving at a best interests determination, particularly where there is evidence that it would detrimentally affect the other parent's relationship with the children. Other relevant factors to be considered include the ages of the children, fitness of the parents, quality of the home environment, each parent's ability to provide for the child[ren's] intellectual and emotional development, and the effect the award of custody to one parent would have on the children's relationship with the other. After considering the mother's role as the primary caregiver and the father's strong relationship with the children and significant involvement in their educational and extracurricular activities, as well as the incidents of domestic violence perpetrated by both parties and the mother's alcohol abuse, the award was proper.

Where Every CSSA Requirement Met But BCSO Miscalculated, That May Not Be Enough to Invalidate Agreement

In Sullivan v Sullivan, --- N.Y.S.2d ----, 2007 WL 4441111 (N.Y.A.D. 3 Dept.) the parties settlement agreement was incorporated, but not merged, into a February 2005 judgment of divorce. When plaintiff moved to enforce the maintenance and child support provisions, defendant cross-moved to have them declared void. Supreme Court denied defendant's motion.. The Appellate Division affirmed. It noted that the agreement indicated that the parties were advised of the Child Support Standards Act, the presumptive amount which would be awarded thereunder, albeit miscalculated, and the reasons why the parties sought to deviate therefrom. While agreeing that an omission of the non-waivable statutory requirements would render the agreement void, the Appellate Division held that where, as here, each and every other statutory requirement is met, yet the basic child support obligation from which the deviation is sought is stated but miscalculated, that alone may not be enough to invalidate the agreement. It was clear that the error emanated from the parties' failure to deduct the agreed upon maintenance from defendant's income prior to the calculation under the CSSA. The error resulted in defendant's agreement to pay child support of $1,500 when the presumptively correct CSSA amount would have been $1,548. With the settlement agreement providing that there will never be any upward modification of child support, only a downward modification based upon defendant's income, and that all of the enumerated tax benefits would enure to defendant, despite the fact that they would have been properly credited to plaintiff, the Appellate Court found no basis upon which it would void the otherwise valid child support provisions in the agreement. Moreover, with Supreme Court having stated its reasons for allowing the deviation in its decision supporting the issuance of the judgment of divorce on the same date when it permitted the incorporation of the parties' agreement in the action for divorce, there was no viable challenge to the judgment.

In Re Ashley Lisa D, --- N.Y.S.2d ----, 2007 WL 4390621 (N.Y.A.D. 1 Dept.) the Appellate Division held that Family Court properly excluded from evidence the Very Intensive Preventive Services program closing summary and a psychological evaluation by an unnamed preparer, as these documents do not fall under the business record exception to the hearsay rule (citing Matter of Bronstein-Becher v. Becher, 25 AD3d 796, 797 [2006] ).

In Bellinger v Bellinger, --- N.Y.S.2d ----, 2007 WL 4441204 (N.Y.A.D. 3 Dept.)Supreme Court partially granted defendant's motion prior to trial to set aside the child support provisions of the parties stipulation because it did not indicate whether the amount of child support was presumptively correct or whether it represented a deviation from the Child Support Standards Act. Following trial, Supreme Court’s judgment of divorce awarded child support in an amount in excess of that contained in the prior stipulation, ordered plaintiff to pay defendant $2,475 in previously owed car insurance and determined that defendant was entitled to submit an application for counsel fees, and awarded defendant counsel fees of $15,874.47. The Appellate Division held that as no appeal was taken from the order vacating that portion of the stipulation that dealt with child support this issue was not properly before it. In any event, Supreme Court correctly determined that the stipulation failed to comply with nonwaivable requirements of the CSSA. Supreme Court correctly found that the before-tax health insurance deductions in the sum of $1,895 .05 were a fringe benefit provided as part of plaintiff's compensation for employment and includable in the calculation of his income for child support purposes. There was no error in the inclusion of $15,496 .56 in plaintiff's income. Contrary to his claim that this was a one-time nonrecurring payment, the record revealed that he received a similar cash payment in 2003 and the record reflected that his income had consistently increased for three consecutive years. Under these circumstances, even assuming the one-time nature of this payment, Supreme Court permissively exercised its broad discretion to impute that sum as income to plaintiff. With respect to maintenance, plaintiff pointed out that his annual maintenance payment would be $9,804, but that Supreme Court gave him credit only for the amount actually paid in 2005 ($7,353). As the statute authorizes a deduction for "alimony or maintenance actually paid or to be paid to a spouse that is a party to the instant action" (Domestic Relations Law 240[1-b][b][5][vii][C] ), there was no error in Supreme Court utilizing the figure actually paid. With respect to plaintiff's argument that he received improper credit for FICA contributions, it held that Supreme Court committed a minor error in only deducting $5,580 for Social Security and not including $1,648.98 for Medicare. After plaintiff received credit for the Medicare portion of his FICA deduction, his income for child support purposes was $97,549. When added to defendant's income of $21,298.39, the combined parental income was $118,847.39. As the parties had two children, application of 25% to this income yielded an annual child support obligation of $29,711.85 or $571.38 per week. Plaintiff was responsible for 82% of this total or $468.53.

In Haines v Haines, 44 A.D.3d 901, 845 N.Y.S.2d 77 (2d Dept.2007) Supreme Court awarded the plaintiff maintenance of $1,200 per month until May 1, 2019. The Appellate Division reduced the award to $900 per month until May 1, 2019, or until the death of either party or the plaintiff's remarriage, whichever shall occur sooner. The Appellate Division held that Supreme Court improvidently exercised its discretion in failing to impute income from the plaintiff's second job as a data entry clerk since that income contributed to the predivorce standard of living and was demonstrative of the plaintiff's earning capacity. The plaintiff had been working at the second job for several years prior to the commencement of the matrimonial action, and the defendant had been working for considerably more than 40 hours per week during this time period. While the plaintiff had been earning only approximately $39,000 per year at the time of the commencement of this action, by the time the matter was heard by the trial court, she had increased her earnings to approximately $56,000. Unlike the Equitable Distribution Law, Domestic Relations Law s 236(B)(6)(a)(1) contains no express time limitation with respect to calculating income. Thus, when considering the "income and property of the respective parties," the trial court should not exclude any property or income increase which has occurred between the time of commencement of the action and the time of trial. Accordingly, the trial court should have attributed to the plaintiff a yearly income of $56,000. Additionally, the trial court erred in failing to include a provision that the award of maintenance will terminate upon the death of either party or the plaintiff's remarriage.

First Department Holds That Request for Extension to File Objections under FCA 439(e) is Procedural and Can Be Granted At Any Time

In Judith S. v Howard S. ,--- N.Y.S.2d ----, 2007 WL 4336196 (N.Y.A.D. 1 Dept.) the Appellate Division affirmed an order of Family Court, which denied respondent father's motion for an extension of time to file objections to the final order of child support issued by the Support Magistrate six months earlier. Respondent father failed to file objections to the final order of child support within the 35-day period set forth in Family Court Act 439(e). It pointed out that CPLR 2004, upon which he relied, contains general authorization for a court to "extend the time fixed by any statute, rule or order for doing any act." It noted that the scope of this section was restricted by the Second Department to "extensions of time for the doing of acts in actions and proceedings and not for the doing of acts which are substantive in character and provided for under other statutes " (Matter of Powers v. Foley, 25 A.D.2d 525 [1966], emphasis added). The request in this case was directed at a procedural time limitation, and not a substantive one, and thus could have been granted even if based on a statute outside the CPLR. However, CPLR 2004 additionally requires a showing of "good cause," and respondent father had not demonstrated good cause for failing to file timely objections. Settlement negotiations alone are an insufficient excuse for delay, and the prejudice that would result to petitioner as a result of the father's delay in filing objections was obvious, given his chronic failure to meet his child support obligations in a full and timely fashion, with no effort to pay down his substantial arrears. The Court pointed out that the Third Department denies its application to time limits set forth in any statutes or regulations "other than those contained in the CPLR" (Matter of Carassavas v. New York State Dept. of Social Servs., 90 A.D.2d 630 [1982] ), and has consistently held to that position (see Matter of Monahan v. Hartka, 17 A.D.3d 758, 759 [2005] ).

Family Court Required to Consider Whether Cola Increase Should Be Applied and to Review Order To Determine Whether Adjustment Warranted Based on Guidelines

In Matter of Palmer v Palmer. --- N.Y.S.2d ----, 2007 WL 4328453 (N.Y.A.D. 2 Dept.), at the mother's request and the SCU issued a cost-of-living adjustment order, which increased the father's monthly support obligation. The Appellate Division held that in considering the father's objections to the COLA increase, the Family Court was required to consider not only whether the COLA increase should be applied, but also to review the order "to determine whether an adjustment is warranted based on the guidelines" set forth in Family Court Act 413 (citing Matter of Tompkins County Support Collection Unit v. Chamberlin, 99 N.Y.2d 328, 335; see Family Ct Act s 413-a[3][b][1]; Social Services Law s 111-n [5][b] ). In the order appealed from, however, was apparent that the Family Court did neither. As a matter of law, the court's calculation was flawed inasmuch as it assumed, incorrectly, that each parent's share of child support could be determined simply by applying the statutory child support percentage of 17% to that party's gross income. Under the Family Court Act, the child support percentage of 17% must be applied to the "combined parental income" , up to $80,000, and the amount must then be "prorated in the same proportion as each parent's income is to the combined parental income" . Moreover, if the combined parental income exceeds $80,000, then "the court shall determine the amount of child support for the amount of the combined parental income in excess of such dollar amount through consideration of the facts set forth in [Family Court Act s 413(1)(f) ]" (Family Ct Act s 413[1][c][3] ). Here, the Family Court's methodology failed to account for the mother's gross income and its possible impact on the father's prorated share of child support. It also held that Family Court improvidently exercised its discretion by using the SCU's adjusted support obligation amount, which had been calculated in accordance with Social Services Law 111-n(4)(a), without regard to the guidelines contained in Family Court Act s 413, to compute a gross income figure, which the court then imputed to the father pursuant to Family Court Act 413(1)(b)(iv). Among other things, the Family Court failed to appreciate that, pursuant to the prior order, only part of the father's support obligation represented his prorated share of 17% of what was then the combined parental income. The remaining amount represented his prorated share of health care, child care, educational, and other extraordinary expenses.

When QDRO Conflicts with Stipulation of Settlement the Stipulation Controls, and QDRO must Be Modified Accordingly

In Condon v Condon, --- N.Y.S.2d ----, 2007 WL 4328729 (N.Y.A.D. 2 Dept.) the Appellate Division held that a proper QDRO obtained pursuant to a stipulation of settlement can convey only those rights to which the parties stipulated as a basis for the judgment. It agreed with the former husband's contention that the distribution of his pension as ordered in the QDRO differs from the distribution of the pension as stated in the parties' stipulation of settlement. The plain language of the relevant provision of the stipulation of settlement governing the former husband's pension stated that the former wife shall be entitled to a 50% interest in the retirement plan as calculated from the date of marriage through the date of separation, that is, 50% of the benefits earned during the relevant 17-year period the former husband was working and was a member of the pension plan. However, the QDRO directed that the former wife receive a percentage of the former husband's pension based upon his final pension benefits, and was not limited to her interest in it as provided for in the stipulation. When the QDRO conflicts with the stipulation of settlement upon which it was based, the stipulation of settlement controls, and the QDRO must be modified accordingly. The court also held that the former wife was entitled to share in cost-of-living adjustments in retirement benefits as long as the increases were limited to her portion of the pension.

Family Court Lacks Authority to Enforce Provisions of Settlement Agreement Pertaining to Distribution of Equity of Marital Residence.

In Gambacorta v Gambacorta, --- N.Y.S.2d ----, 2007 WL 4183000 (N.Y.A.D. 2 Dept.) the parties judgment of divorce incorporated by reference, but did not merge, a stipulation of settlement, which provided for distribution of the remaining equity in the marital residence, allocated responsibility for debts incurred by the former wife and required the former husband to pay the wife maintenance and for certain dental expenses. The Appellate Division held that contrary to the husband's contention, the Family Court is authorized by statute to entertain petitions for the enforcement of an order or decree awarding maintenance or support, and to enter money judgments for support arrears, unless the Supreme Court expressly retains exclusive jurisdiction to enforce the terms of a judgment of divorce (see Family Ct Act s 466[c]. However, Family Court, as a court of limited jurisdiction, lacked authority to determine so much of the wife's petition as sought to enforce those provisions of the Settlement Agreement which pertain to distribution of the equity of the marital residence. The Settlement Agreement also required the husband to pay up to $5,000 towards dental work to be provided to the wife. The husband only submitted evidence sufficient to prove payment of $2,500 to the wife's dentist. The unsworn letter from the dentist stating that a total payment of $5,000 had been received did not have the indicia of reliability associated with a receipt or business record, because it was not created contemporaneously with the purported payments and there was no showing that it was created in the ordinary course of business (see CPLR 4518[a] ). Accordingly, the husband was obligated to pay $2,500 to the wife for dental expenses.