Decisions of Interest

Waking Hours With Child Do Not Determine 'Custodial Parent'

In rejecting respondent's appeal of child support amounts awarded by a Support Magistrate, the Appellate Division, Third Department, refused to accept a father's argument that he should be declared his child's custodial parent on the basis that he spent more waking hours with the girl than did the mother. In the Matter of Somerville v. Somerville, 2004 N.Y. App. Div. LEXIS 2544 (App. Div., 3d Dept. 3/11/04) (Crew III, J.P.; Carpinello, Rose, Lahtinen and Kane, JJ.).

Following the parties' separation, petitioner sought child support. During the course of the custody dispute that followed, the Support Magistrate issued an order of support fixing respondent's child support obligation at $2748.24 per month, together with arrears in the amount of $49,468.32. Respondent's objections were denied by Family Court, prompting this appeal.

Although respondent raised 15 separate issues on appeal, the court distilled his arguments to two: 1) that as he is the child's custodial parent, he should not have to pay any child support and 2) if he does have to pay child support, the amount due is far less than the obligation imposed by Family Court.

As to the issue of who is the child's true custodial parent, the court found no serious dispute concerning the fact that the child spent the majority of the total hours in any given week with her mother. But the respondent father made what the court characterized as “an innovative, albeit misguided, attempt to downplay the obvious import of this key fact” by contending that he should be deemed the child's de facto custodial parent because he had physical custody of the child during most of her waking hours. According to respondent, a child needs less parental care during those periods when he or she is sleeping or the parent is not actively engaged in “preparing meals for the child, changing her diaper, playing with her, or attempting to quell a temper tantrum.” Thus, he argued, “more weight must be given to daytime than to nighttime custodial hours.” The court held that this argument, “though novel, is patently absurd and is entitled to no serious consideration.” The court went on to find no error in the child support amount set by the Support Magistrate, and so affirmed.

Failure to File Marriage Certificate Does Not Void Marriage

A marriage was properly solemnized even though a certificate was never filed with the town clerk, so a grant of divorce was proper. Cardozo v. Holden-Cardozo, N.Y.L.J 4/19/04, DOI Vol. 74; pg. 19 (Sup. Ct., Suffolk Cty.) (Kent, J.).

The parties' July 1991 marriage by a Presbyterian minister was attended by two official witnesses and at least 100 guests. The marriage certificate, however, was never filed with the town clerk. In April 1992, a child was born to the parties, who separated in 1999. The parties' divorce action was settled by “so ordered” stipulation in June 2003. Thereafter, defendant discharged her attorney, then later contended that because there was no marriage there could be no divorce. The court in its decision and order, dated Nov. 13, 2003, vacated the stipulation and set the matter down for a hearing solely on the issue of the validity of the parties' marriage.

The defendant testified that the parties never intended to get married and that the ceremony was a ruse to fool the plaintiff's ailing mother. She claimed that the minister was aware of the subterfuge, but the Reverend testified otherwise. The plaintiff contended the parties fully intended to get married.

The court held that the marriage was valid. Domestic Relations Law ' 14 requires the officiating person to file the license within 5 days of a ceremony, but DRL ' 25 states that a couple's failure to obtain a license will not void the validity of the marriage, so long as the parties are of full age. Failure of the solemnizing official to comply with the mandate to file the license, the court therefore reasoned, may subject said officer to criminal prosecution but does not render the marriage invalid. Therefore, the marriage had been properly solemnized.

The court also found that the child's conception affirmed the parties' marital status. “Where there is sufficient evidence to demonstrate a presumption of marriage, said presumption can only be rebutted 'by the most cogent and satisfactory evidence,' ” the court said, citing to In re Estate of Lowny, 152 A.D.2d 574, 575 (2d Dept., 1989). Here, there was no compelling evidence presented by defendant to rebut the validity of the marriage and, especially in a case involving a child, the law will presume a legitimate marriage absent such evidence.

Citing Gregg v. Gregg, 133 Misc. 109, 231 N.Y.S.2d 221 (Sup. Ct., New York Cty., 1928) the court concluded that even if the parties lacked a contractual intent to marry, DRL '' 5 and 6 would only give defendant the right to annul the marriage.

'Law of the Case' Doctrine Precludes Creative Shuffling of Obligations

The “law of the case” doctrine precluded Supreme Court, Monroe County, from ordering plaintiff to pay carrying charges on the marital residence when the defendant had already been ordered to pay those fees, even though the change was meant to compensate the defendant for plaintiff's failure to pay court-ordered child support and maintenance. Anderson v. Anderson, 2004 N.Y. App. Div. LEXIS 3071 (App. Div., 4th Dept. 3/19/04) (Pigott, Jr., P.J.; Hurlbutt, Scudder, Gorski and Hayes, JJ.).

Plaintiff appealed from an amended order entered after a hearing before Supreme Court concerning which party should be responsible for payment of the carrying charges on the marital residence. Pursuant to a post-judgment motion made during the pendency of the appeal, a justice of the court who had not previously been involved in the case, and who didn't conduct the hearing on remittal, ordered defendant to pay the carrying charges on the marital residence because she was awarded exclusive possession of the residence.

Although the court conducting the hearing on remittal acknowledged the existence of the order requiring defendant to pay the carrying charges, it determined that plaintiff should be held responsible for the carrying charges because he had failed to pay court-ordered child support and maintenance. This, the Fourth Department held, was error, because where an issue has been judicially determined, the “law of the case” doctrine precludes reconsideration of that issue in the course of the same litigation. The appellate court therefore modified the amended order by vacating that part determining that plaintiff was liable for the carrying charges on the marital residence.

Failure to Recite Reasons for Deviation from CSSA Guidelines Not Fatal

Although the parties' modification agreement failed to set forth the exact calculation of child support that would have been required under the Child Support Standards Act (CSSA) before it detailed the reasons for the parties' deviation, such omission was cured by its incorporation of all terms and provisions of the separation agreement, which did set forth the exact calculation of child support. In the Matter of McColl v. McColl, 2004 N.Y. App. Div. LEXIS 3680 (App. Div., 3d Dept. 4/1/04) (Peters, J.P.; Spain, Mugglin, Lahtinen and Kane, JJ.).

The parties' judgment of divorce, dated Nov. 14, 2001, incorporated, but did not merge with, a January 2000 separation agreement and an October 2001 modification agreement. In the original separation agreement, the parties acknowledged their understanding of the CSSA and how its terms would ordinarily dictate each parent's support obligation for their minor child. After specifying the CSSA obligation, the agreement provided that such amount would not be imposed, due to respondent's agreement to pay certain other sums, including $100 per month in child support for a period of two years. In the modification agreement, respondent reaffirmed his obligation to pay $100 per month until January 2002. He thereafter agreed to calculate his support obligation using the CSSA guidelines ' 17% of his gross income, less FICA ' but deviated from them by excluding the child's school-related expenses. In the modification agreement, as in the original agreement, the parties acknowledged their understanding of the CSSA, the implications of its applicability, and detailed that “except as otherwise set forth [in the modification agreement], all terms and provisions of the separation agreement dated Jan. 28, 2000, shall continue in full force and effect.”

In October 2002, petitioner commenced this proceeding to increase respondent's child support obligation. Family Court dismissed the petition, prompting this appeal. Petitioner's argument on appeal was that the modification agreement should be set aside for failure to comply with the provisions of Family Ct Act ' 413(1)(h), which requires all such agreements to set forth what the “basic child support obligation would have been and the reason or reasons that such agreement or stipulation does not provide for payment of that amount.” While this defect can be fatal (see, .e.g, Matter of Sievers v. Estelle, 211 A.D.2d 173, 626 N.Y.S.2d 592 (1995)), the court found that the omission was not determinative in the present circumstances. In both the agreements, the parties acknowledged their understanding of the CSSA and its applicability. Although the modification agreement failed to set forth the exact calculation of child support that would have been required under the CSSA before it detailed the reasons for the parties' deviation, such omission was cured by its incorporation of all terms and provisions of the separation agreement, which did, in fact, so specify. With no proffer indicating that the parties' income or support obligations had changed at the time of the modification agreement ' an agreement entered in temporal proximity to the separation agreement ' the court found the modification agreement sufficient. And, because petitioner failed to show a change in circumstances warranting a modification of child support, the court upheld the Family Court's dismissal of the petition.

Waking Hours With Child Do Not Determine 'Custodial Parent'

In rejecting respondent's appeal of child support amounts awarded by a Support Magistrate, the Appellate Division, Third Department, refused to accept a father's argument that he should be declared his child's custodial parent on the basis that he spent more waking hours with the girl than did the mother. In the Matter of Somerville v. Somerville , 2004 N.Y. App. Div. LEXIS 2544 (App. Div., 3d Dept. 3/11/04) (Crew III, J.P.; Carpinello, Rose, Lahtinen and Kane, JJ.).

Following the parties' separation, petitioner sought child support. During the course of the custody dispute that followed, the Support Magistrate issued an order of support fixing respondent's child support obligation at $2748.24 per month, together with arrears in the amount of $49,468.32. Respondent's objections were denied by Family Court, prompting this appeal.

Although respondent raised 15 separate issues on appeal, the court distilled his arguments to two: 1) that as he is the child's custodial parent, he should not have to pay any child support and 2) if he does have to pay child support, the amount due is far less than the obligation imposed by Family Court.

As to the issue of who is the child's true custodial parent, the court found no serious dispute concerning the fact that the child spent the majority of the total hours in any given week with her mother. But the respondent father made what the court characterized as “an innovative, albeit misguided, attempt to downplay the obvious import of this key fact” by contending that he should be deemed the child's de facto custodial parent because he had physical custody of the child during most of her waking hours. According to respondent, a child needs less parental care during those periods when he or she is sleeping or the parent is not actively engaged in “preparing meals for the child, changing her diaper, playing with her, or attempting to quell a temper tantrum.” Thus, he argued, “more weight must be given to daytime than to nighttime custodial hours.” The court held that this argument, “though novel, is patently absurd and is entitled to no serious consideration.” The court went on to find no error in the child support amount set by the Support Magistrate, and so affirmed.

Failure to File Marriage Certificate Does Not Void Marriage

A marriage was properly solemnized even though a certificate was never filed with the town clerk, so a grant of divorce was proper. Cardozo v. Holden-Cardozo, N.Y.L.J 4/19/04, DOI Vol. 74; pg. 19 (Sup. Ct., Suffolk Cty.) (Kent, J.).

The parties' July 1991 marriage by a Presbyterian minister was attended by two official witnesses and at least 100 guests. The marriage certificate, however, was never filed with the town clerk. In April 1992, a child was born to the parties, who separated in 1999. The parties' divorce action was settled by “so ordered” stipulation in June 2003. Thereafter, defendant discharged her attorney, then later contended that because there was no marriage there could be no divorce. The court in its decision and order, dated Nov. 13, 2003, vacated the stipulation and set the matter down for a hearing solely on the issue of the validity of the parties' marriage.

The defendant testified that the parties never intended to get married and that the ceremony was a ruse to fool the plaintiff's ailing mother. She claimed that the minister was aware of the subterfuge, but the Reverend testified otherwise. The plaintiff contended the parties fully intended to get married.

The court held that the marriage was valid. Domestic Relations Law ' 14 requires the officiating person to file the license within 5 days of a ceremony, but DRL ' 25 states that a couple's failure to obtain a license will not void the validity of the marriage, so long as the parties are of full age. Failure of the solemnizing official to comply with the mandate to file the license, the court therefore reasoned, may subject said officer to criminal prosecution but does not render the marriage invalid. Therefore, the marriage had been properly solemnized.

The court also found that the child's conception affirmed the parties' marital status. “Where there is sufficient evidence to demonstrate a presumption of marriage, said presumption can only be rebutted 'by the most cogent and satisfactory evidence,' ” the court said, citing to In re Estate of Lowny, 152 A.D.2d 574, 575 (2d Dept., 1989). Here, there was no compelling evidence presented by defendant to rebut the validity of the marriage and, especially in a case involving a child, the law will presume a legitimate marriage absent such evidence.

Citing Gregg v. Gregg , 133 Misc. 109, 231 N.Y.S.2d 221 (Sup. Ct., New York Cty., 1928) the court concluded that even if the parties lacked a contractual intent to marry, DRL '' 5 and 6 would only give defendant the right to annul the marriage.

'Law of the Case' Doctrine Precludes Creative Shuffling of Obligations

The “law of the case” doctrine precluded Supreme Court, Monroe County, from ordering plaintiff to pay carrying charges on the marital residence when the defendant had already been ordered to pay those fees, even though the change was meant to compensate the defendant for plaintiff's failure to pay court-ordered child support and maintenance. Anderson v. Anderson , 2004 N.Y. App. Div. LEXIS 3071 (App. Div., 4th Dept. 3/19/04) (Pigott, Jr., P.J.; Hurlbutt, Scudder, Gorski and Hayes, JJ.).

Plaintiff appealed from an amended order entered after a hearing before Supreme Court concerning which party should be responsible for payment of the carrying charges on the marital residence. Pursuant to a post-judgment motion made during the pendency of the appeal, a justice of the court who had not previously been involved in the case, and who didn't conduct the hearing on remittal, ordered defendant to pay the carrying charges on the marital residence because she was awarded exclusive possession of the residence.

Although the court conducting the hearing on remittal acknowledged the existence of the order requiring defendant to pay the carrying charges, it determined that plaintiff should be held responsible for the carrying charges because he had failed to pay court-ordered child support and maintenance. This, the Fourth Department held, was error, because where an issue has been judicially determined, the “law of the case” doctrine precludes reconsideration of that issue in the course of the same litigation. The appellate court therefore modified the amended order by vacating that part determining that plaintiff was liable for the carrying charges on the marital residence.

Failure to Recite Reasons for Deviation from CSSA Guidelines Not Fatal

Although the parties' modification agreement failed to set forth the exact calculation of child support that would have been required under the Child Support Standards Act (CSSA) before it detailed the reasons for the parties' deviation, such omission was cured by its incorporation of all terms and provisions of the separation agreement, which did set forth the exact calculation of child support. In the Matter of McColl v. McColl , 2004 N.Y. App. Div. LEXIS 3680 (App. Div., 3d Dept. 4/1/04) (Peters, J.P.; Spain, Mugglin, Lahtinen and Kane, JJ.).

The parties' judgment of divorce, dated Nov. 14, 2001, incorporated, but did not merge with, a January 2000 separation agreement and an October 2001 modification agreement. In the original separation agreement, the parties acknowledged their understanding of the CSSA and how its terms would ordinarily dictate each parent's support obligation for their minor child. After specifying the CSSA obligation, the agreement provided that such amount would not be imposed, due to respondent's agreement to pay certain other sums, including $100 per month in child support for a period of two years. In the modification agreement, respondent reaffirmed his obligation to pay $100 per month until January 2002. He thereafter agreed to calculate his support obligation using the CSSA guidelines ' 17% of his gross income, less FICA ' but deviated from them by excluding the child's school-related expenses. In the modification agreement, as in the original agreement, the parties acknowledged their understanding of the CSSA, the implications of its applicability, and detailed that “except as otherwise set forth [in the modification agreement], all terms and provisions of the separation agreement dated Jan. 28, 2000, shall continue in full force and effect.”

In October 2002, petitioner commenced this proceeding to increase respondent's child support obligation. Family Court dismissed the petition, prompting this appeal. Petitioner's argument on appeal was that the modification agreement should be set aside for failure to comply with the provisions of Family Ct Act ' 413(1)(h), which requires all such agreements to set forth what the “basic child support obligation would have been and the reason or reasons that such agreement or stipulation does not provide for payment of that amount.” While this defect can be fatal ( see, .e.g, Matter of Sievers v. Estelle , 211 A.D.2d 173, 626 N.Y.S.2d 592 (1995)), the court found that the omission was not determinative in the present circumstances. In both the agreements, the parties acknowledged their understanding of the CSSA and its applicability. Although the modification agreement failed to set forth the exact calculation of child support that would have been required under the CSSA before it detailed the reasons for the parties' deviation, such omission was cured by its incorporation of all terms and provisions of the separation agreement, which did, in fact, so specify. With no proffer indicating that the parties' income or support obligations had changed at the time of the modification agreement ' an agreement entered in temporal proximity to the separation agreement ' the court found the modification agreement sufficient. And, because petitioner failed to show a change in circumstances warranting a modification of child support, the court upheld the Family Court's dismissal of the petition.