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LAW AND THE FAMILY

Child Support, Agreements and the Rights of Children

By Joel R. Brandes and Carole L. Weidman

New York Law Journal (p. 3, col. 1)
March 28, 1995

      HE WAS TICKLED PINK with just how inventive he was in dreaming up 
  excuses to avoid paying the increase she sought in child support. A 
  second family, vacations, braces leave little, if any, excess money, he 
  reasoned. Meanwhile, she had all but spent the money she felt sure she 
  would win from his endless breaches. First he said ``get a job''; then 
  he complained, ``Since you're working, you're never with the 
  children.'' In the background, a child hoped that the dreaded encounter 
  would never take place. But the opening of the courtroom door signals 
  the start of Round 1.
      This child is just one of countless casualties. The child, who in 
  theory, is the focus of the matter, is too often subordinated to the 
  needs and emotions of the parents embroiled in the battle. The courts 
  and legislators are taking notice and doing something about it.
      In Priolo v. Priolo the parties' settlement agreement provided that 
  the father would pay child support of $200 per month for each of the 
  parties' two children and, among other things, contained a ``mutual 
  waiver'' provision whereby the parties waived the right ``to institute 
  and prosecute to completion any action or proceeding to record, revise, 
  alter or amend the agreement between the parties as to  . . . 
  maintenance for the [mother] and/or the children.'' 
      The parties' 1985 divorce judgment incorporated this provision. In 
  1990, after the mother sought and obtained from Family Court an upward 
  modification of the child support provisions of the divorce judgment, 
  the father commenced an action to recover damages for breach of the 
  mutual waiver provision. The Appellate Division reversed an order of 
  the Supreme Court, which granted the father summary judgment on the 
  issue of liability and dismissed the complaint as a ``violation of the 
  clear public policy of the state to ensure that minor children receive 
  adequate financial support from their parents.*1
  
  Policy of Ensuring Support
  
      Finding that the modification was in keeping with the ``overriding 
  policy of ensuring adequate child support,'' the court concluded that 
  ``the terms of the settlement agreement must yield to the welfare of 
  the children and cannot support an action to recover damages for breach 
  of contract arising from the increase in the father's child support 
  obligation.''
      In Pecora v. Cerillo,*2 (decided on the same day) the parties' 1983 
  separation agreement as modified, which was incorporated into and 
  survived their judgment of divorce, provided that the father, who had 
  exclusive physical custody of the children, would provide for their 
  support out of ``his own funds without contribution from the mother.'' 
  The father thereafter sought and obtained a temporary order of support 
  in Family Court, which directed her to pay $866 per month in child 
  support, based on his allegations that he was unable to meet the 
  childrens' support obligations on his own.
      After the Family Court proceeding was terminated and the children 
  returned to the mother's exclusive custody, she brought an action 
  alleging that the father had breached the agreement to provide for the 
  complete support of the children without her contribution. The 
  Appellate Division reversed the Supreme Court's order denying the 
  father's motion to dismiss the complaint and granted the motion. It 
  held that to allow such a suit would violate New York State's public 
  policy and that ``conceding the duty of a custodial parent  . . . to 
  take whatever action is necessary to ensure adequate child support, we 
  hold that parent can not later be asked to respond in damages for an 
  alleged breach of the previously executed agreement.''
      The court found that this policy of mandating ``adequate child 
  support as justice requires'' is memorialized in the Child Support 
  Standards Act, which gives a parent, from whom an increase in child 
  support is sought in contradiction to a separation agreement, an 
  opportunity to be heard on the reasonableness of the agreement in the 
  proceeding for the increase (citing Family Court Act (FCA) Sec.413 [1] 
  [b] [1] [f]).
      The court held that since children are not bound by separation 
  agreements, one that does not provide adequate support for the parties' 
  child does not bind a court from remedying the inadequacy. Therefore, 
  an inadequate child support provision ``is voidable and cannot bind an 
  appropriate court from remedying the inadequacy (***) nor can it bind a 
  parent from seeking to remedy the inadequacy.'' The court held that 
  ``in consideration of the foregoing and under the circumstances of this 
  case, that plaintiffs' argument that it is unconstitutional under the 
  impairment of contracts doctrine (U.S. Const., Art 1, Sec.10) to 
  preclude a breach of contract action fails. A statute that is intended 
  to prevent an economic wrong, in this case against the children, is not 
  unconstitutional as impairing contract rights.(***)''
  
  Inadequate Terms Do Not Bind
  
      Both Priolo and Pecora cite the 1990 Third Department decision in 
  Maki v. Straub,*3 which held that the terms of an inadequate child 
  support provision in an agreement do not bind the court or the child 
  and cannot support a civil action for breach thereof, and that the 
  theory behind such an action was contrary to the public policy 
  incorporated in the Child Support Standards Act (CSSA).*4 In Maki the 
  plaintiff sought damages, which represented the difference between the 
  amount due under the parties' agreement, which was incorporated into 
  and survived their divorce judgment, and the amount of the post-
  judgement order of the Family Court increasing that amount. There was 
  no specific provision in the agreement prohibiting or waving the right 
  to modification.
      In Cohen v. Rosen,*5 the parties' 1983 separation agreement, which 
  was incorporated in and survived the divorce, provided that the father 
  would waive his rights to the marital home in exchange for a wavier by 
  the mother ofmaintenance and child support arrearages under a prior 
  court order and for reduced child support payments of $25 per child. It 
  contained no provision for the post-secondary education of the parties' 
  two children. The house was subsequently sold and produced net proceeds 
  of $100,000. The Appellate Division affirmed an order of the Family 
  Court that directed the father to pay 66 percent of his daughter's 
  college education. It rejected the father's argument that college 
  expenses were an element of the general child support obligation 
  encompassed by the parties' separation agreement and that the ``Boden-
  Brescia'' standards controlled.
  
  Separate Item
  
      The court held that the determination of post-secondary education 
  expenses is a separate item in addition to the ``basic child support 
  obligation'' in which the court must consider (1) the educational 
  background of the parents; (2) the child's academic ability; and (3) 
  the parties' financial ability to provide the necessary funds.*6 
  Because the mother was not seeking upward modification of the ``basic 
  child support obligation'' in a surviving separation agreement, or 
  seeking to modify a specific provision in the agreement for an amount 
  that the parties felt was adequate to cover post-secondary educational 
  expenses, neither the tests of Boden v. Boden nor of Brescia had to be 
  met to establish the father's share of these expenses under the CSSA.*7 
  The court held that the operative consideration for finding that 
  neither Boden nor Brescia applied was the fact that the agreement was 
  silent on the issue of post-secondary educational expenses which were 
  not part of the ``basic'' child support.
      From these recent decisions reemerges New York's pre-1977 (pre-
  Boden) public policy favoring the interest of children in receiving 
  ``adequate'' child support. The law, as to modification of maintenance, 
  child support awards and agreements, has always been based on the same 
  construction of the law, which has been not to impede the contractual 
  provisions of a surviving agreement. By turning to Goldman, McMains and 
  Schmelzel, the leading cases on modification of maintenance where there 
  is a surviving agreement, one can gain a fuller understanding.
      In Goldman v. Goldman, the Court of Appeals held that where a 
  separation agreement was incorporated in a divorce judgment and 
  survived, the Supreme Court, in the exercise of its statutory powers, 
  could modify the alimony provisions of the judgment downward, based on 
  a substantial change in the husband's financial circumstances,*8 
  without impeding the contractual provision of the surviving agreement. 
  The agreement could not limit the statutory power of the court and 
  could not confer power.
      The downward modification of the judgment did not affect the rights 
  of the wife to recover in an action to enforce the agreement. As the 
  agreement was not modified and was still an enforceable contract, the 
  wife could sue for the difference between the contract amount and the 
  reduced amount set by the modified judgment.*9 In McMains v. McMains, 
  the court held that the Supreme Court could modify the alimony 
  provisions of the judgment upward, where the former wife ``is actually 
  unable to support herself on the amount heretofore allowed, and is in 
  actual danger of becoming a public charge.''*10
      Where, as here, a modification of alimony provisions in a divorce 
  judgment was necessary to prevent a wife who remained married from 
  becoming a public charge, it was proper as a recognition of the 
  husband's statutory duty imposed by Sec.5-311 of the General 
  Obligations Law. The court reasoned that if it had the power to modify 
  the judgment downward, it had the power to modify it upward to prevent 
  the wife from becoming a public charge.
      In Schmelzel v. Schmelzel,*11 the court held that where an 
  agreement was incorporated in and survived a judgment, the separation 
  agreement is in full force and effect, and the court cannot increase 
  the amount provided therein for alimony or award counsel fees. The 
  husband's enhanced earnings and improved financial situation is of no 
  moment to the application for modification of the alimony provisions of 
  the judgment upward.
      The effect of Goldman, McMains and Schmelzel, where there was a 
  surviving agreement is to limit the power of the court to modify its 
  judgment or order, upward or downward, while denying it authority to 
  impair the contract.
  
  Merger Into Judgment
  
      Where, however, a separation agreement executed before July 19, 
  1980, was merged by the court into its judgment, the agreement no 
  longer existed as an independent contract and became a part of the 
  judgment, separate from the contract and subject to all the rules and 
  regulations respecting such a judgment. And the court could modify the 
  alimony provision upward or downward based upon a substantial change of 
  circumstances.*12 Although New York enacted Domestic Relations Law 
  (DRL) Sec.236 [B] [9] [b] in 1980, which permits the actual 
  modification of agreements for maintenance where there is a surviving 
  agreement, its constitutionality is questionable and has never been 
  sustained.*13
      The statutory powers of the Supreme Court to modify the maintenance 
  and child support provisions of a New York order or judgment are now 
  found in DRL Sec.Sec.236[B][9][b], 240 (1) and 240 (1-b)(l).*14 DRL 
  Sec.236 (B)(9)(b) provides that where a court makes an award directing 
  a parent to pay support for his/her child, and there is no surviving 
  agreement, the Supreme Court is empowered to modify that award based on 
  a showing of the recipient's inability to be self-supporting or a 
  substantial change of circumstances, including financial hardship.*15
      The significance of a court-ordered provision for child support, 
  like a court ordered provision for maintenance, is that it may be 
  modified at any time based upon a showing of a change of circumstances. 
  It has always been the general rule that an agreement executed by the 
  parties that is fair and adequate when made, which provides support for 
  children, confines the obligation of the noncustodial parent to that 
  which is set forth in the agreement. Unless and until the agreement is 
  set aside or modified, no other award may be made for child support.*16
  
  Expanded Rights
  
      The strong public policy enunciated in FCA Sec.461 (a), effective 
  Sept. 1, 1962, that the parties' cannot by agreement eliminate or 
  diminish the duty of either parent to support their child is expanding. 
  A child is entitled to support, maintenance and an education. All those 
  rights are in accordance with his/her parent's financial means and 
  ability.*17
      Indeed, rightfully, properly and perhaps necessarily the courts, 
  are transforming our children's keepers into fiduciaries. And why not? 
  Practically speaking there is no one else upon whom children may rely. 
  If the care or support is inadequate someone must come forward for the 
  child. Once brought forth to the court, an application to remedy the 
  inadequacy of child support is addressed by the court to the financial 
  benefit or detriment of the parent/fiduciary who brought it. It is the 
  child's needs, circumstances and rights that are the focus.
      FCA Sec.461(a) provides that a separation agreement does not 
  eliminate or diminish either parent's duty to provide for a child of 
  the marriage under FCA Sec.413. The initial adequacy of the provisions 
  of a separation agreement for the child may be challenged at any time. 
  As a consequence, it was the rule until 1977 that child support awards 
  were always modifiable based on a substantial change of circumstances.
      This rule was limited by the Court of Appeals, in 1977 in Boden, 
  when it attempted to stop the flood of postjudgment child support 
  proceedings inundating the courts. Where a separation agreement or 
  stipulation was incorporated into or survived a judgment of divorce, 
  modification of the child support provisions was limited by the Court 
  of Appeals in Boden,*18 which was not affected by the 1980 Equitable 
  Distribution Law (EDL) amendments.
      In Boden, the court restated the general rule that the child is not 
  a party to the agreement and is not bound by the terms of a separation 
  agreement pertaining to child support and that an action may be 
  commenced against the father for child support, despite the existence 
  of an agreement. Finding, however, that the Appellate Division abused 
  its discretion by increasing the child support provisions of that 
  particular separation agreement under those circumstances, the Court of 
  Appeals set forth the rule that; . . . [absent a showing of 
  unanticipated and unreasonable change in circumstances, the support 
  provisions of the agreement should not be disturbed  . . . Unless there 
  has been an unforeseen change in circumstances and a concomitant 
  showing of need, an award for child support in excess of that provided 
  for in the separation agreement should not be made solely on an 
  increase in cost where the agreement was fair and equitable when 
  entered into  . . . . (citations omitted).
      Five years later, in 1982, spurred by a concern that the Boden rule 
  was too harsh, the Court of Appeals qualified the rule of Boden in 
  Brescia v. Fitts.*19 It held that the principles of Boden did not alter 
  the scope of Family Court's power to order support where the dispute 
  concerns the child's right to receive adequate support and that the 
  principles set forth in Boden apply only when the dispute is directed 
  solely to readjusting the respective obligations of the parents to 
  support their child.
      The Court held that a different situation was presented where it is 
  the child's right to receive adequate support that is being asserted. 
  It stated:
  In seeking increased child support from the father, the mother was not 
  asserting the right of the child to be supported by the father, as the 
  child's needs could clearly have been met by either parent, given their 
  respective financial situations. Rather, the mother was asserting her 
  own interest in having the father contribute more to the financial 
  burden of raising the child. Thus, the principles set forth in Boden 
  apply only when the dispute is directed solely to readjusting the 
  respective obligations of the parents to support their child.
      ***
      A different situation is presented, however, where it is the 
  child's right to receive adequate support that is being asserted. Here, 
  Family Court's power regarding child support derives from the FCA. 
  Section 461 of that act, insofar as it relates to this case, provides 
  that the parents' duty to support their child is not diminished by the 
  existence of, inter alia, a separation agreement or judgment of divorce 
  and, in the absence of an order of the Supreme Court directing support, 
  Family Court may make an order of support. If such an order of the 
  Supreme Court already exists, however, and the Supreme Court has not 
  retained exclusive jurisdiction in itself to enforce or modify its 
  order, the Family Court is authorized to enforce the order or, on a 
  finding that changed circumstances exist, to modify it.
      [2] Thus, the principles iterated in Boden did not alter the scope 
  of the Family Court's power to order support where the dispute concerns 
  the child's right to receive adequate support. In the present case, 
  because a pre-existing Supreme Court order directs child support 
  payments and grants concurrent jurisdiction to the Family Court to 
  enforce or modify the order, the Family Court could properly order an 
  increase in the child support award if the petitioner has demonstrated 
  a change of circumstances (FCA Sec.461, Subdivision [b]), warranting 
  such an upward modification. Petitioner introduced evidence tending to 
  show, among other things, that the combination of her own income and 
  the payments contributed by respondent does not adequately meet the 
  children's needs. `` (citations omitted) (emphasis supplied).
      In Brescia, the Court of Appeals unequivocally stated that a court 
  has the power to order an increase in child support if the petitioner 
  demonstrated a change of circumstances. The key is the introduction of 
  evidence intending to show, among other things, that the combination of 
  the custodial parent's income and the payments contributed by the non-
  custodial parent did not adequately meet the children's needs.
      Specific items of expense were detailed as well as petitioner's and 
  respondent's respective financial circumstances. The Court of Appeals 
  held that whether the evidence shows a change of circumstances 
  sufficient to order a modification is a question best left to the 
  discretion of the lower courts whose primary goal is `` . . . to make a 
  determination based upon the best interests of the children  . . . .''
  `Adequate' Support
      Brescia v. Fitts is the leading Court of Appeals decision that 
  examines current New York public policy as to child support 
  obligations. The most significant result of the Brescia decision is the 
  substantial limitation of the prior holding in Boden to its facts, and 
  the reaffirmation of the interest of children in receiving ``adequate'' 
  support. In effect, Boden remains relevant for the allocation of the 
  child support burden between parties to a surviving separation 
  agreement, but it no longer may be extended as a bar to a child's claim 
  for adequate support.
      The distinction between the child's interest and that of each 
  parent may prove to be the most significant aspect of the Court of 
  Appeals decision in Brescia. Although there are obvious practical 
  difficulties in determining where a child's right ends and a parental 
  right begins, since child support may indirectly benefit the custodial 
  parent, the emphasis on the child's right demonstrates the current 
  sensitivity of the Court of Appeals to the welfare of children. Indeed, 
  any conflict that arises is subsumed by the necessity of the situation 
  and counterbalanced by the decision-making position of the courts.
      Legislators, courts and (it is hoped) commentators of the law 
  continue to forge the way for expanding children's rights. Proponents 
  of children's rights pioneered the way with the CSSA, which despite its 
  reader unfriendly nature, is intended to ensure that children receive 
  adequate support.
      Among other things, it provides that ``the termination of child 
  support awarded pursuant to Section 240 of this Article'' is an 
  additional basis for a modification of a maintenance or child support 
  award.*20 This applies to awards made without an underlying agreement, 
  after a trial or a hearing, or where an agreement providing for 
  maintenance or child support merges into an order or judgment.
      While the enactment of the CSSA is not in and of itself to be 
  considered a ``change of circumstances'' warranting modification where 
  the court finds that the circumstances warrant modification of a child 
  support order, which was in existence before Sept. 15, 1989, the court 
  ``must'' apply the standards. Said another way, existing support orders 
  and agreements are not subject to modification simply because of the 
  enactment of DRL Sec.240(1b). The criteria for modification must first 
  be met. Assuming the criteria for modification are met, the court must 
  apply the standards effective Sept. 1, 1991.
  
  notes
  
      (1) ---- AD2d ---- , 621 NYS2d 567 (2d Dept, 1995).
      (2) ---- AD2D ---- , 621 NYS2d 363 (2d Dept. 1995).
      (3) 167 AD2d 589, 563 NYS2d 218 (3d Dept., 1990).
      (4) Laws of 1989, Ch 567.
      (5) ---- AD2D ---- , 621 NYS2d 567 (3d Dept. 1995).
      (6) Citing Romansoff v. Romansoff 167 AD2d 527, 562NYS 2d 523.
      (7) The test of Boden v. Boden, 42 NY2d 210, 397 NYS2d 701 (1977) 
  is that an inadequate or unreasonable change of circumstances has 
  occurred; the test of Brescia v. Fitts, 56 NY2d 132, 451 NYS2d 68 
  (1982) is that the custodial parent is unable to meet the needs or 
  provide adequate support for the child.
      (8) Goldman v. Goldman, 282 NY 296, 26 NE2d 265.
      (9) King v. Schultz, 29 NY2d 718, 325 NYS2d 754, 275 NE2d 336; 
  Morse v. Morse (1st Dept.), 45 AD2d 370, 357 NYS2d 534, app dismd 36 
  NY2d 911, 372 NYS2d 651, 334 NE2d 599. But see, Mackey v. Mackey (2d 
  Dept.), 58 AD2d 806, 396 NYS2d 257.
      (10) McMains v. McMains, 15 NY2d 283, 258 NYS2d 93, 206 NE2d 185, 
  later app (2d Dept.) 23 AD2d 889, 260 NYS2d 251.
      (11) 287 NY 21, 38 NE2d 114 (1941).
      (12) Staehr v. Staehr (1932), 237 AD 843, 261 NYS 103; Holahan v. 
  Holahan (1932), 234 AD 572, 255 NYS 693; Kunker v. Kunker (1930), 230 
  AD 641, 246 NYS 118; Goldfish v. Goldfish (1920), 193 AD 686, 184 NYS 
  512, affd 230 NY 606, 130 NE 912.
      (13) In Busetti v. Busetti, 108 AD2d 769, 484 NYS2d 873 (2d Dept., 
  1985) the court, in construing the maintenance modification provisions 
  contained in DRL Sec.236(B)(9)(b), stated that paragraph b of 
  subdivision 9 purports to allow the court to, in effect, suspend the 
  separation agreement for as long as necessary and to what extent 
  necessary and, thus, precludes the party who is hurt by the 
  modification from bringing a contract claim to recover the difference 
  between the amount agreed to and the amount as modified. In a footnote 
  the court stated that there was some question whether this is 
  constitutional and cited Kleila v. Kleila, 50 NY2d 277, 283-284, 428 
  NYS2d 896, 406 NE2d 753 decided only some two months before the 
  effective date of EDL. There the Court of Appeals indicated that ``any 
  attempt to confer upon a court of any jurisdiction within the United 
  States broad powers to modify the terms of a separation agreement might 
  well run afoul of constitutional limitations upon the State's power to 
  tamper with vested contractual rights.'' See also Cohen v. Seletsky, 
  142 AD2d 111, 534 NYS2d 688 (2d Dept., 1988).
      (14) See Laws of 1980, Ch. 645, Sec.Sec.2, 3, Laws of 1989, Ch 567, 
  Sec.5, as amended by Laws of 1992, Ch. 41, Sec.140, amending DRL 
  Sec.236 (B)(9)(b). The FCA has not been similarly amended. The statute 
  provides in part: ``Upon application by either party, the court may 
  annul or modify any prior order or judgment as to maintenance or child 
  support, upon a showing of the recipient's inability to be self-
  supporting or a substantial change in circumstance or termination of 
  child support awarded pursuant to Sec.240 of this Article, including 
  financial hardship. Where, after the effective date of this Part, a 
  separation agreement remains in force no modification of a prior order 
  or judgment incorporating the terms of said agreement shall be made as 
  to maintenance without a showing of extreme hardship on either party, 
  in which event the judgment or order as modified shall supersede the 
  terms of the prior agreement and judgment for such period of time and 
  under such circumstances as the court determines. Provided, however, 
  that no modification or annulment shall reduce or annul any arrears of 
  child support which have accrued prior to the date of application to 
  annul or modify any prior order or judgment as to child support  . . . 
  The provisions of this Subdivision shall not apply to a separation 
  agreement made prior to the effective date of this part.''
      (15) See DRL Sec.236 Part B, Subdivision (9)(b).
      (16) Reimer v. Reimer, 25 AD2d 956, 299 NYS2d 318, aff'd 31 NY2d 
  881, 340 NYS2d 185.
      (17) Moat v. Moat, 27 AD2d 895; Reimer v. Reimer, 31 AD2d 482, 299 
  NYS2d 318, aff'd 31 NY2d 881, 340 NYS2d 185; Kulok v. Kulok, 20 Ad2d 
  568, 245 NYS2d 859 (2d Dept. 1963); Hoppl v. Hoppl, 50 AD2d 59, 376 
  NYS2d 524; Banat v. Banat, 41 AD2d 960, 344 NYS2d 12 (2d Dept. 1973); 
  Boden v. Boden, 42 NY2d 210 (177); Bresca v. Fitts, 56 NY2d 132, 451 
  NYS2d 68 (1982).
      (18) Boden v. Boden, supra.
      (19) Brescia v. Fitts.    (20) See DRL Sec.240(1-b)(l).
----------------
Joel R. Brandes and Carole L. Weidman have law offices in New York City 
and Garden City. They co-authored, with the late Doris Jonas Freed and 
Henry H. Foster, Law and the Family, New York (Lawyers' Co-Operative 
Publishing Co., Rochester, N.Y.) Mr. Brandes and Ms. Weidman coauthor the 
annual supplements.