Litigation

A child support agreement that fails to include statutory language will be found invalid; child support will only be recalculated from the date the payee spouse seeks modification, and the most recent available financial circumstances of the parties will be applied. Luisi v. Luisi, Index No. 6838/92, Supreme Court of New York, Appellate Division, Second Department, April 5, 2004.

The parties were divorced in 1992 and signed a second child support agreement in 1996. In 2001, the wife filed a motion to recalculate child support from 1992 through 2001 and for an upward modification of child support because of a change of circumstances. The appellate court denied the wife's motion for a recalculation of child support from 1992, but remanded the matter to the trial court for a recalculation of child support from 2001 through the present. It held that the child support agreements entered into by the parties in 1992 and 1996 were invalid because they did not contain the required New York statutory language. However, the appellate court held that the lower court should have made a new child support order consistent with New York law, and only retroactive to the date the wife filed the motion in 2001 (not the date of the parties' divorce). Moreover, the appellate court noted that the lower court should rely on the parties' 2001 tax returns in making the child support determination and not the parties' financial circumstances in 1996 when the parties' second child support agreement was made. Finally, the appellate court did not address the issue of upward modification of child support because it directed the lower court to apply the parties' financial circumstances as of 2001.