DOROSKY v. HERALD

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Docket Number

No. 2007-08493.

Attorney(S)

Harvey C. Kallus, New Windsor, N.Y., for appellant.

Judges

Reinaldo E. Rivera
Mark C. Dillon

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Smart Summary

Factual and Procedural Background

The parties were divorced by judgment dated May 17, 1999, which incorporated but did not merge an earlier stipulation providing child support payable through the father's Social Security Disability in the amount of $172 per month, per child. In 2006 the mother filed petitions to enforce the father's child support obligation as set forth in the judgment of divorce and for an upward modification. After a hearing, the Support Magistrate granted the mother's petitions by order entered July 13, 2006. The father filed objections; the Family Court (Bivona, J.) entered an order on October 12, 2006 that, in effect, sustained the father's objections and vacated the Support Magistrate's order. The mother appealed. The Appellate Division reversed the Family Court's October 12, 2006 order insofar as appealed, denied the father's objections, and reinstated the Support Magistrate's July 13, 2006 order.

Legal Issues Presented

Whether parties may validly "opt out" of the Child Support Standards Act (CSSA) absent a knowing decision to do so.
Whether the mother's lack of indication that she knew Social Security dependent benefits do not displace a parent's support obligation (and are payable only until age 18) affects the validity of the stipulated child support arrangement and the Support Magistrate's order.
Whether the Support Magistrate's July 13, 2006 order granting enforcement and upward modification of child support should be reinstated.

Arguments of the Parties

The opinion does not contain a detailed account of the parties' legal arguments.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Matter of Schaller v Schaller, 279 AD2d 525, 526, 527	Opting out of the CSSA must be done "knowingly."	The court applied this principle to require proof that the mother's decision (or the parties' decision) to opt out was knowing; no such indication existed.
Matter of Bill v Bill, 214 AD2d 84, 90-91	Compliance with CSSA guidelines requires that parties be fully informed of the statute and how the guidelines operate in their circumstances.	The court relied on this rule to conclude the record lacked evidence that the mother had been fully informed, undermining any valid opt-out.
Matter of Graby v Graby, 87 NY2d 605, 611	Dependent child's Social Security benefits are not intended to displace a parent's obligation to support the children (and are payable only until the child reaches 18).	The court cited this principle to determine the mother may not have known that Social Security benefits did not eliminate the father's support obligation and that benefits are time-limited, supporting reinstatement of the Support Magistrate's order.

Court's Reasoning and Analysis

The court began from the premise that parties may "opt out" of CSSA requirements (Family Ct Act § 413[h]) only if that choice is made knowingly (citing Matter of Schaller v Schaller). It reiterated that compliance with CSSA guidelines requires that parties be fully informed of the statute and how the guidelines would apply to their situation (citing Matter of Bill v Bill). The court observed there was no indication the mother knew that dependent children's Social Security benefits do not displace a parent's obligation (citing Matter of Graby v Graby) or that such benefits terminate at age 18. Given the absence of evidence that the mother made a knowing, fully informed decision to opt out, the court concluded the Support Magistrate properly granted the petitions to enforce and to upwardly modify child support; therefore, the Family Court's vacation of the Support Magistrate's order was reversed and the July 13, 2006 order reinstated.

Holding and Implications

The order entered October 12, 2006 is reversed insofar as appealed from; the father's objections are denied; and the Support Magistrate's order entered July 13, 2006 is reinstated.

Consequences: The mother's petitions to enforce the father's child support obligation and for an upward modification, as granted by the Support Magistrate's July 13, 2006 order, remain effective. The opinion does not announce a new rule beyond applying existing precedents regarding the requirement that any opt-out of the CSSA be knowing and based on full information.

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In the Matter of GERALDINE DOROSKY, Appellant, v. VAUGHN L. HERALD, Respondent.

Ordered that the order entered October 12, 2006 is reversed insofar as appealed from, on the law and the facts, without costs or disbursements, the father's objections are denied, and the order entered July 13, 2006 is reinstated.

The parties were divorced by judgment dated May 17, 1999. Pursuant to the judgment of divorce, which incorporated but did not merge an earlier stipulation, "[t]he parties . . . voluntarily agreed to child support for the minor issue of the marriage payable . . . through [the father's] Social Security Disability to each child in the amount of $172.00 per month, per child." In 2006 the mother filed petitions to enforce the father's child support obligation as set forth in the judgment of divorce and for an upward modification of that child support obligation. After a hearing, the Support Magistrate, by order entered July 13, 2006, granted the mother's petitions. Thereafter, the father filed objections to the Support Magistrate's findings and, upon review, the Family Court, by order entered October 12, 2006, in effect, sustained the father's objections and vacated the Support Magistrate's order. The mother appeals.

Although parties are permitted to "opt out" of the requirements of the Child Support Standards Act (hereinafter the CSSA) ( see Family Ct Act § 413 [h]), that decision must be made "knowingly" ( Matter of Schaller v Schaller, 279 AD2d 525, 526, 527). Compliance with the CSSA guidelines requires "that the parties have been fully informed of the provisions of the statute, and of how the guidelines would operate in their individual circumstances" ( Matter of Bill v Bill, 214 AD2d 84, 90-91). Here, there is no indication that the mother knew, inter alia, that "[a] dependent child's Social Security benefits are . . . not intended to displace the obligation" of the father to support his children ( Matter of Graby v Graby, 87 NY2d 605, 611) or that Social Security benefits would be payable only until the dependent children reached the age of 18. Accordingly, under the facts of this case, the Support Magistrate properly granted the mother's petitions, and the Support Magistrate's order entered July 13, 2006 must be reinstated.