Ford v. Ford

Appellate Division of the Supreme Court of New York, Second Department · 2021 · Family Law

Family LawChild SupportCounsel FeesMatrimonial Actionsretroactive child supportCSSAChild Support Standards Actcredits for pendente lite payments

Facts

The parties were married in 1998 and had three children. The plaintiff commenced the divorce action on May 4, 2012, and later obtained pendente lite relief requiring the defendant to pay unallocated maintenance and child support and 100% of various carrying charges on the marital residence, which the plaintiff exclusively occupied. In December 2016, the parties stipulated to the defendant's prospective child support obligation and submitted the issues of retroactive child support and additional counsel fees for judicial determination. The Supreme Court denied retroactive child support and awarded the plaintiff $50,000 in counsel fees, with $40,504.65 payable directly to her former law firm.

Issue

Whether the Supreme Court properly denied the plaintiff's request for retroactive child support without first calculating the basic child support obligation under the CSSA and then applying any credits for payments made during the pendency of the action. Whether the Supreme Court properly awarded the plaintiff, as the less monied spouse, $50,000 in counsel fees.

Rule

A child support obligation commences on, and is retroactive to, the date the application is made, and in a matrimonial action commenced by summons and complaint that date is the date the action was commenced. The court must calculate the basic child support obligation under the CSSA and, if deviating because that amount would be unjust or inappropriate, must consider the statutory factors and set forth in writing the factors considered, each party's pro rata share, and the reasons for not ordering the basic obligation. A party is entitled to credits against retroactive child support for temporary or voluntary child support payments and for carrying charges on the marital home, but the court must appropriately allocate unallocated payments between child support and maintenance. In matrimonial actions commenced on or after October 12, 2010, there is a rebuttable presumption that counsel fees shall be awarded to the less monied spouse.

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One of 10 multiple-choice questions for this case. Pick an answer to see why.

In a divorce action filed in Albany, Nora Patel served and filed a summons and complaint on February 1, 2022. She did not move for temporary support until July 1, 2022, and at trial she sought retroactive child support for the parties' two children.

Under the governing rule, from what date does the noncustodial parent's child support obligation begin for purposes of retroactive support?

Explanation. A child support obligation commences on, and is retroactive to, the date the application was made. In a matrimonial action like this, that date is the date the action was commenced. The later filing of a pendente lite motion does not reset the retroactivity date.