LiGreci v LiGreci
2011 NY Slip Op 06371
Decided on August 30, 2011
Appellate Division, Second Department
Wife appealed from the decison of the supreme court to terminate husband’s child support and maintenance obligations and cancel all arrears.
The Second Department reversed and remitted to the supreme court for a hearing on the issue of support arrears. In the parties’ divorce, husband had been ordered to pay $6,000 per month in child support and $4,000 per month in maintenance. Subsequently, the parties’ two daughters turned 21 and the parties’ son moved in with husband. Husband also claimed that he could not afford to pay maintenance because he was disabled, unemployed, and unable to work, and that he had paid wife $4,000 per month, which included payments for items not included in the divorce, such as monthly health insurance. Wife claimed that husband was still working for and receiving an income from the family business.
The Second Department held that the lower court erred in awarding husband a credit for the payments he made to wife for items not included in the divorce. These voluntary payments made for the benefit of the children, not pursuant to court order, cannot be credited against the amounts due under the divorce judgment.
Although the lower court properly ended husband’s child support obligation, because the daughters had turned 21 and the son was living with him, the lower court erred in terminating maintenance. In determining whether there was a substantial change in circumstances warranting downward modification, the court compares the payor’s financial circumstances at the time of the motion to what they were at the time of the support order. Here, plaintiff’s income was reduced prior to the judgment of divorce and he failed to establish a reduction in income since the divorce. In fact his income increased for a time after the divorce. Moreover, the medical evidence failed to establish when husband became disabled and unable to work. Therefore, husband failed to establish a change in financial circumstances since the judgment of divorce and was not entitled to a downward modification.
The lower court also erred in cancelling husband’s child support arrears without a hearing. There are issues of fact with respect to whether husband was getting income from the family business, whether money borrowed from family should be imputed as income, and whether husband was living below the poverty line. Thus, the case Second Department remitted the case for a hearing on child support arrears.
Finally, the lower court erred when it cancelled husband’s maintenance arrears. Arrears may not be modified unless the payor shows good cause for failure to make an application for relief from the order prior to the arrears accumulating. Here, husband failed to show good cause for not bringing the application earlier. On remittal, a hearing should be held to determine the exact amount of maintenance arrears.