DON'T TAKE HER WORD FOR IT!!!

By Sari M. Friedman, Esq.

There are three situations that we will look at today which appear to be similar, simple and automatic in resolution. In actuality, although they are similar, they are neither simple nor automatic in resolution, and can have grave consequences. On the bright side, however, with proper planning and foresight, each of these situations can have happy endings.

We will examine each of the three situations, based on the following facts: Mr. and Mrs. Smith are divorced. The Smiths executed a Stipulation of Settlement which was incorporated but not merged in the Smith's divorce decree. Mrs. Smith is to have custody of their seven year old child and Mr. Smith is to pay $100.00 per week child support.

SITUATION NUMBER 1

Five years later, Mrs. Smith, for whatever reason, gives custody of the unemancipated child to Mr. Smith. As of that day, Mr. Smith stops paying child support to Mrs. Smith. One year later, Mrs. Smith takes Mr. Smith to Court to enforce and collect the child support arrears now totaling $5,200.00. Mr. Smith admits to not paying the child support, and presents his defense of having custody during that time period continuing to the present. Further, Mr. Smith now asks the Court to award him custody and vacate the support order.

SITUATION NUMBER 2

Their Stipulation of Settlement specified emancipation events, including the child's obtaining of full-time employment, which will relieve Mr. Smith from his obligation to pay support. On the child's 19th birthday, he obtained full-time employment. Mr. Smith, in compliance with the agreement, stopped paying support. One year later, Mrs. Smith takes Mr. Smith to Court to enforce and collect the child support arrears now totaling $5,200.00. Mr. Smith admits to not paying child support, and presents his defense of the child being emancipated pursuant to the agreement during that time period continuing to the present. Further, Mr. Smith now asks the Court to declare the child emancipated and vacate the support order

SITUATION NUMBER 3

Five years later, Mr. Smith become unemployed and speaks to Mrs. Smith about his inability to continue paying his full support obligation. He offers to pay her $50.00 per week out of his unemployment benefits until he is employed again.

She agrees.

One year later, Mrs. Smith takes Mr. Smith, still unemployed, to Court to enforce and collect the child support arrears now totaling $2,600.00. Mr. Smith admits to not having paid the full amount of child support, and presents as his defense the verbal modification of the agreement which Mrs. Smith agreed to. Further, Mr. Smith now asks the Court to modify the support order.

In each of the above situations, Mr. Smith never petitioned the Court to change or modify the existing divorce decree and Stipulation prior to Mrs. Smith's taking him to Court for the arrears which occurred. Luckily for Mr. Smith, in each of the above situations, the Court did change or modify the support order in his favor, but only from the date of his Petition.
Risely v. Risely, 173 AD2d 1103, 571 NYS2d 112 (3rd Dept. 1991). Unfortunately for Mr. Smith, he was not only found liable for the arrears [Risely; Rubenstein v. Yosef, 198 AD2d 959, 603 NYS2d 336 (2nd Dept. 1993) McMullen v. Elaine B., 189 AD2d 973, 592 NYS2d 504 (3rd Dept. 1993), Johnston v. Johnston, 115 AD2d 520, 496 NYS2d 50 (2nd Dept. 1985)], but he was also found to be in willful violation of the support order found in the Judgment.
Not only was he ordered to pay arrears of $5,200.00, but he was also ordered to pay Mrs. Smith's counsel fees due to his willful violation [Risely; DRL §237(c)].

How can you avoid these penalties if you should ever be in Mr. Smith's position? By properly planning for these semi-common situations in your Stipulation of Settlement or Separation Agreement and immediately petitioning the Court upon the occurrence of such situations.

Every Stipulation or Agreement should clearly state that when a change of residence of the child from one parent to the other occurs, as compared to an extremely extended visit (McMullen). This provision should also address the termination of child support from that parent to the other. If you have more than one child, clearly state how much child support is paid for each child and how it is to be recalculated such custody of only one change. Otherwise, the total child support amount may continue in full.

Upon the occurrence of such a change of custody, the new custodial parents should immediately petition the Court to amend both the Judgment of Divorce and the Agreement between the parties to reflect this change of custody and vacate the payment of support. [Risely; Scally v. Scally, 151 AD2d 869, 542 NYS2d 844 (3rd Dept. 1989)]. Now the Court will have a guide as to how you and your former spouse contemplated the resolution of such a situation. [Risely; McMullen]. You may then even be able to collect support from the former custodial parent.

The Agreement should also include provisions stating when the child support will end, other than just the age of 21, i.e., emancipation, and clearly define those situations. If you have more than one child, clearly state how much child support is paid for each child and how it is to be calculated when each becomes emancipated, otherwise, either the total child support amount may continue. This provision is not self-executing, so, upon the happening of such an emancipation event, the paying parent should immediately petition the Court to declare the child emancipated and terminate or modify the payment of child support, before you stop or reduce your child support payments. [Johnston].

Further, agreements should include a provision for reducing support payments due to hardship such as unemployment, pay cuts and disability, as well as the manner in which to recalculate the support payments to guide the Court, and allow you to petition the Court for a modification even when your former spouse refuses to agree to a reduction in payments. If you suddenly encounter a hardship, and the custodial spouse verbally agrees to receive a lower payment for the duration of the hardship, this agreement should be put in writing and signed by both parties in front of a notary public, in the same formal manner as was the original agreement, including a provision that either party may present the agreement to a Court to be "So Ordered." Then, take this written agreement to Court and have it "So Ordered." Obviously, if the custodial spouse takes you to Court for arrears she prior verbally agreed not to enforce, she is NOT going to admit to the verbal agreement.

Try proving it. Your word against hers. If you are in arrears, the Court expects a story of such a verbal agreement.

Though the Court may find such a verbal agreement was made, the Court will probably declare it void for lack of "valuable consideration" if the original agreement did not contemplate such a modification.
Wiggins v. Wiggins, 121 AD2d 534, 503 NYS2d 843 (2nd Dept. 1986).

The bottom line is that a Court Order is a Court Order, and a Judgment of Divorce is a Court Order, and a "So Ordered" agreement is a Court Order. A Court Order continues in effect until terminated or modified by a Court of proper jurisdiction Rubenstein; Johnston; Miller. To make a unilateral change to a Court Order is to possibly be in willful contempt, even if logical and agreed to by both parties (Risely). The happening of an event, i.e., emancipation provided for in the Agreement, other than the reaching of the 21st birthday, is not self-executing, and requires a determination by the Court (Johnston). To determine your child emancipated without petitioning the Court is to possibly be in willful contempt. Finally, if your spouse will agree verbally but refuses to put it in writing and submit a new Agreement to the Court,
WATCH OUT!!!