Decisions of Interest

CHILD SUPPORT ARREARS AWARD

Supreme Court, King's County, erred when it vacated an award of child support arrears because the former custodial parent died and the children are now living with their father. Dembitzer v. Rindenow, '- N.Y.S.2d ”, 2006 WL 3803408 (2d Dept. 12/26/06) (Florio, J.P., Schmidt, Krausman, Lifson, JJ.).

The plaintiff and his former wife (now-deceased) had three children. On Feb. 1, 2001, the plaintiff commenced this action for divorce. The Supreme Court, Kings County, issued a pendente lite order directing the plaintiff to make unallocated payments for child support and maintenance, including payment of the marital home's mortgage, tuition, the cost of a babysitter and $160 per week for food and necessities for the children. The plaintiff did not seek modification of the pendente lite order.

After trial, Supreme Court determined that the amount of plaintiff's basic child support obligation was $548 per week, to be paid to the wife retroactive to the date of application. The former wife then moved for an award of $58,126 in child support arrears, representing $548 per week for a period of 150 weeks, less $160 per week paid pursuant to the pendente lite order and a credit of $850. The defendant died around this time, leaving her executrix to carry on with the case.

The financial issues were referred to Judicial Hearing Officer (JHO) who recommended, inter alia, that Supreme Court allow a credit for child care expenses paid by the plaintiff, thereby reducing the child support arrears from $58,126 to $19,876, without determining whether such was an asset of the children or the estate. The estate moved to disaffirm. The Supreme Court, Kings County (Krauss J.), determined the child care expenses could not be allowed as a credit against child support arrears, sincethey had been awarded as a separate 'add on' item in the pendente liteorder and judgment of divorce (see Dembitzer v. Rindenow, 8 Misc.3d 683). However, that court also determined that the entire amount of child support arrears should be vacated because payment of arrears to the estate of the former wife would work a 'grievous injustice' to the children and the father by diverting funds needed for the children's current needs, without any assurance that thechildren would receive any benefitfrom the estate after satisfaction of debts. The estate appealed.

The Second Department reversed, finding Supreme Court was without authority to vacate the award of child support arrears absent an application for downward modification of the child support obligation. See Hasegawa v. Hasegawa, 290 AD2d 488. Any argument the plaintiff might have had that the award of childcare expenses was not authorized by statute, or that the method of calculating the obligation was unjust, was waived by his failure to take an appeal from the pendente lite order or from the divorce judgment. Further, the death of the custodial parent following entry of a judgment awarding child support arrears has no bearing on the obligated parent's responsibility for payment of accrued arrears, since the obligation to pay child support survives the death of the custodial parent. See Matter of Modica v. Thompson, 300 AD2d 662. The judgment was therefore reversed.

CHILD SUPPORT ARREARS AWARD

Supreme Court, King's County, erred when it vacated an award of child support arrears because the former custodial parent died and the children are now living with their father. Dembitzer v. Rindenow, '- N.Y.S.2d ”, 2006 WL 3803408 (2d Dept. 12/26/06) (Florio, J.P., Schmidt, Krausman, Lifson, JJ.).

The plaintiff and his former wife (now-deceased) had three children. On Feb. 1, 2001, the plaintiff commenced this action for divorce. The Supreme Court, Kings County, issued a pendente lite order directing the plaintiff to make unallocated payments for child support and maintenance, including payment of the marital home's mortgage, tuition, the cost of a babysitter and $160 per week for food and necessities for the children. The plaintiff did not seek modification of the pendente lite order.

After trial, Supreme Court determined that the amount of plaintiff's basic child support obligation was $548 per week, to be paid to the wife retroactive to the date of application. The former wife then moved for an award of $58,126 in child support arrears, representing $548 per week for a period of 150 weeks, less $160 per week paid pursuant to the pendente lite order and a credit of $850. The defendant died around this time, leaving her executrix to carry on with the case.

The financial issues were referred to Judicial Hearing Officer (JHO) who recommended, inter alia, that Supreme Court allow a credit for child care expenses paid by the plaintiff, thereby reducing the child support arrears from $58,126 to $19,876, without determining whether such was an asset of the children or the estate. The estate moved to disaffirm. The Supreme Court, Kings County (Krauss J.), determined the child care expenses could not be allowed as a credit against child support arrears, sincethey had been awarded as a separate 'add on' item in the pendente lite order and judgment of divorce ( see Dembitzer v. Rindenow , 8 Misc.3d 683). However, that court also determined that the entire amount of child support arrears should be vacated because payment of arrears to the estate of the former wife would work a 'grievous injustice' to the children and the father by diverting funds needed for the children's current needs, without any assurance that thechildren would receive any benefitfrom the estate after satisfaction of debts. The estate appealed.

The Second Department reversed, finding Supreme Court was without authority to vacate the award of child support arrears absent an application for downward modification of the child support obligation. See Hasegawa v. Hasegawa , 290 AD2d 488. Any argument the plaintiff might have had that the award of childcare expenses was not authorized by statute, or that the method of calculating the obligation was unjust, was waived by his failure to take an appeal from the pendente lite order or from the divorce judgment. Further, the death of the custodial parent following entry of a judgment awarding child support arrears has no bearing on the obligated parent's responsibility for payment of accrued arrears, since the obligation to pay child support survives the death of the custodial parent. See Matter of Modica v. Thompson, 300 AD2d 662. The judgment was therefore reversed.