Decisions of Interest

Sex-Abuse Allegations Not Supported By Victim's Statements to Siblings

Siblings' corroborating statements concerning the alleged abuse of a child were not enough to support an accusation of sexual abuse because the alleged victim refused to testify and her earlier statements to various witnesses were contradictory. Matter of W., N.Y.L.J. 9/9/03, DOI; Vol. 230; Pg. 20 (Elkins, J.).

In a child protective proceeding under Article 10 of the Family Court Act, it was alleged that due to respondent's alleged sexual abuse of his stepdaughter, the other seven children in the home were derivatively abused or neglected. Out-of-court statements by other children in the household, made to a Children's Services Administration caseworker, cross-corroborated the stepdaughter's statements to school personnel, hospital doctors and a police detective. Despite respondent's failure to testify, the court dismissed the petition. Referring to Family Court Act ' 1046(a)(vi) the court found that there was no corroborative evidence other than the statements from the other children. Citing Matter of Kelly F., the court, reviewing the statements by the other children, determined that due to material contradictions to the stepdaughter's statements, their corroborating statements failed to meet the threshold of reliability and were insufficient to support the allegations of abuse.

Lawyer-Turned-Professor Gets Reduction in Child Support Obligation

The Appellate Division, First Department, reversed an order of the Supreme Court, New York County, denying a father's motion for downward modification of child support because he had shown a change in circumstances warranting the modification. Cole v. Irizarry, 2003 N.Y. App. Div. LEXIS 9056 (App. Div., First Dept. 8/28/03) (Mazzarelli, J.P., Andrias, Saxe, Ellerin, Williams, JJ.).

Defendant father sought downward modification of his child support obligations pursuant to DRL ' 236(B)(9)(b). In support of this motion, he presented unrefuted medical evidence showing that he could no longer perform the intense work required of a law firm associate. Instead, he had decided to pursue a career as a law school professor, which, he asserted, left him with insufficient funds on which to live after making required maintenance and support payments. The trial court denied the motion. The appellate court reversed, finding that defendant's evidence was adequate to show that an unanticipated consequence of medical problems warranted the requested reduction of his support. However, the court declined to reduce any arrears of child support that accrued prior to defendant's motion for a downward modification of his obligations.

Cost of Living in Affluent Area Affects Child Support

The high cost of living in certain areas of the state can be considered in deciding the amounts of child support parents should pay even though such considerations are not required under the Child Support Standards Act (CSSA). Clerkin v. Clerkin, N.Y.L.J. 9/5/03, Vol 230; Pg. 22 (Spolzino, J.).

Plaintiff father became the de facto custodial parent after defendant mother's relocation left their child with him in Pelham. Under the CSSA, parents must pay 17% of their combined income, up to $80,000, for their child's support. The court noted, however, that it is substantially more expensive to raise a family in Westchester County in 2003 than it was to raise a family in the average county in New York State in 1989, when the CSSA was adopted. The question presented here was whether this reality should be acknowledged in determining, pursuant to CSSA, the support obligations of parents who raise their children in Westchester County and whose means permit them to pay more than the basic child support required by the statute. More specifically, the issue in this case was whether the child support obligation of parents who together earn $275,300 per year should be limited to the $13,600 in basic child support, or whether additional child support should be required.

The court ruled that plaintiff should contribute $2964 monthly and that defendant should contribute $936 monthly to their child's support. Although not a statutory consideration, the court found that the high cost of living in Westchester County and the town of Pelham is an appropriate consideration in requiring divorcing couples to pay child support at a level higher than mandated under the CSSA. The court added $72,000 to the income considered because Westchester housing costs are three times the statewide average and incomes there are 46% higher than the state average. Another $72,000 was added because incomes in Pelham are nearly twice the state average.

Settlement Agreement Mandates Mediation

A divorced father was compelled according to the terms of a settlement agreement to submit to mediation on the issue of where his daughter would attend school because the agreement didn't unequivocally state which school the children would attend but left open the possibility that they might attend other schools, and if the parents could not agree, they would handle the dispute through mediation. Edwards v. Poulmentis, Index No. 6649/02, 2003 N.Y.App. Div. LEXIS 9130 (Second Dept., 8/26/03) (Altman, J.P. Florio, Friedmann and Miller, J.J., concur).

The parties entered into a matrimonial settlement agreement providing, inter alia, that from the ninth through the twelfth grade, “it is anticipated that the children will be attending Mercy High School, Riverhead, NY, unless the parties agree upon another parochial or private school or a public school which is mutually acceptable.” Further, paragraph 7(a) of the agreement provided that “the parties shall consult and agree with each other with respect to the children's education … In the event the parties are unable to agree on any such issue, same shall be mediated by the party most closely in expertise to the disagreement between the parties.”

The couple's 13-year-old daughter decided she would prefer attending public high school, a decision her mother endorsed. The father did not agree. The mother sought to resolve the disagreement through mediation, but the father refused to participate. Thereafter, the plaintiff commenced this action for, among other things, specific performance of the mediation provision in the agreement. The father's cross motion to dismiss the complaint was granted by the Supreme Court, which concluded that the agreement was clear and unambiguous and provided that the children should attend Mercy. The appellate court, however, found that the agreement provided only that the parties anticipated that the children would attend Mercy and would resolve any dispute concerning their education through mediation. Accordingly, the plaintiff was entitled to an order directing the defendant to attend mediation on this issue.

Sex-Abuse Allegations Not Supported By Victim's Statements to Siblings

Siblings' corroborating statements concerning the alleged abuse of a child were not enough to support an accusation of sexual abuse because the alleged victim refused to testify and her earlier statements to various witnesses were contradictory. Matter of W., N.Y.L.J. 9/9/03, DOI; Vol. 230; Pg. 20 (Elkins, J.).

In a child protective proceeding under Article 10 of the Family Court Act, it was alleged that due to respondent's alleged sexual abuse of his stepdaughter, the other seven children in the home were derivatively abused or neglected. Out-of-court statements by other children in the household, made to a Children's Services Administration caseworker, cross-corroborated the stepdaughter's statements to school personnel, hospital doctors and a police detective. Despite respondent's failure to testify, the court dismissed the petition. Referring to Family Court Act ' 1046(a)(vi) the court found that there was no corroborative evidence other than the statements from the other children. Citing Matter of Kelly F., the court, reviewing the statements by the other children, determined that due to material contradictions to the stepdaughter's statements, their corroborating statements failed to meet the threshold of reliability and were insufficient to support the allegations of abuse.

Lawyer-Turned-Professor Gets Reduction in Child Support Obligation

The Appellate Division, First Department, reversed an order of the Supreme Court, New York County, denying a father's motion for downward modification of child support because he had shown a change in circumstances warranting the modification. Cole v. Irizarry , 2003 N.Y. App. Div. LEXIS 9056 (App. Div., First Dept. 8/28/03) (Mazzarelli, J.P., Andrias, Saxe, Ellerin, Williams, JJ.).

Defendant father sought downward modification of his child support obligations pursuant to DRL ' 236(B)(9)(b). In support of this motion, he presented unrefuted medical evidence showing that he could no longer perform the intense work required of a law firm associate. Instead, he had decided to pursue a career as a law school professor, which, he asserted, left him with insufficient funds on which to live after making required maintenance and support payments. The trial court denied the motion. The appellate court reversed, finding that defendant's evidence was adequate to show that an unanticipated consequence of medical problems warranted the requested reduction of his support. However, the court declined to reduce any arrears of child support that accrued prior to defendant's motion for a downward modification of his obligations.

Cost of Living in Affluent Area Affects Child Support

The high cost of living in certain areas of the state can be considered in deciding the amounts of child support parents should pay even though such considerations are not required under the Child Support Standards Act (CSSA). Clerkin v. Clerkin, N.Y.L.J. 9/5/03, Vol 230; Pg. 22 (Spolzino, J.).

Plaintiff father became the de facto custodial parent after defendant mother's relocation left their child with him in Pelham. Under the CSSA, parents must pay 17% of their combined income, up to $80,000, for their child's support. The court noted, however, that it is substantially more expensive to raise a family in Westchester County in 2003 than it was to raise a family in the average county in New York State in 1989, when the CSSA was adopted. The question presented here was whether this reality should be acknowledged in determining, pursuant to CSSA, the support obligations of parents who raise their children in Westchester County and whose means permit them to pay more than the basic child support required by the statute. More specifically, the issue in this case was whether the child support obligation of parents who together earn $275,300 per year should be limited to the $13,600 in basic child support, or whether additional child support should be required.

The court ruled that plaintiff should contribute $2964 monthly and that defendant should contribute $936 monthly to their child's support. Although not a statutory consideration, the court found that the high cost of living in Westchester County and the town of Pelham is an appropriate consideration in requiring divorcing couples to pay child support at a level higher than mandated under the CSSA. The court added $72,000 to the income considered because Westchester housing costs are three times the statewide average and incomes there are 46% higher than the state average. Another $72,000 was added because incomes in Pelham are nearly twice the state average.

Settlement Agreement Mandates Mediation

A divorced father was compelled according to the terms of a settlement agreement to submit to mediation on the issue of where his daughter would attend school because the agreement didn't unequivocally state which school the children would attend but left open the possibility that they might attend other schools, and if the parents could not agree, they would handle the dispute through mediation. Edwards v. Poulmentis, Index No. 6649/02, 2003 N.Y.App. Div. LEXIS 9130 (Second Dept., 8/26/03) (Altman, J.P. Florio, Friedmann and Miller, J.J., concur).

The parties entered into a matrimonial settlement agreement providing, inter alia, that from the ninth through the twelfth grade, “it is anticipated that the children will be attending Mercy High School, Riverhead, NY, unless the parties agree upon another parochial or private school or a public school which is mutually acceptable.” Further, paragraph 7(a) of the agreement provided that “the parties shall consult and agree with each other with respect to the children's education … In the event the parties are unable to agree on any such issue, same shall be mediated by the party most closely in expertise to the disagreement between the parties.”

The couple's 13-year-old daughter decided she would prefer attending public high school, a decision her mother endorsed. The father did not agree. The mother sought to resolve the disagreement through mediation, but the father refused to participate. Thereafter, the plaintiff commenced this action for, among other things, specific performance of the mediation provision in the agreement. The father's cross motion to dismiss the complaint was granted by the Supreme Court, which concluded that the agreement was clear and unambiguous and provided that the children should attend Mercy. The appellate court, however, found that the agreement provided only that the parties anticipated that the children would attend Mercy and would resolve any dispute concerning their education through mediation. Accordingly, the plaintiff was entitled to an order directing the defendant to attend mediation on this issue.