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New York Court Allows Two Bites of the Apple

By ALM Staff | Law Journal Newsletters |

In a decision that caused a stir among the bench and bar, New York State's highest court, the Court of Appeals, sanctioned a highly controversial practice that enables custodial spouses to draw child support twice from the same income stream. In a 5-2 ruling, the court affirmed the lower court's decision and found no statutory authority for deducting enhanced earning contributions from the child support calculus. The majority concluded that “it appears that the Legislature did not wish to have a child's lifestyle and support altered based on a distributive award.” Holterman v. Holterman, 73 (N.Y.Ct.App., June 10, 2004.)

The immediate effect of the ruling is that Dr. Robert Holterman must pay his former wife of 19 years two-thirds of his net income, about $91,000 a year. Mrs. Holterman had originally been awarded $35,000 annually in maintenance and $21,288 annually as an equitable share of Dr. Holterman's enhanced earning capacity attributable to his medical license. He was ordered to pay yearly child support of $34,876. The child support was based on Dr. Holterman's income, excluding spousal maintenance but including the value of the medical license.

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