| Matter of Yarinsky v Yarinsky |
| 2009 NY Slip Op 01265 [59 AD3d 828] |
| February 19, 2009 |
| Appellate Division, Third Department |
| In the Matter of Robin J. Yarinsky, Appellant, v Steven Yarinsky,Respondent. |
—[*1] Nicholas E. Tishler, Niskayuna, for respondent.
Peters, J.P. Appeal from an order of the Family Court of Saratoga County (Abramson, J.),entered February 22, 2008, which dismissed petitioner's application, in a proceeding pursuant toFamily Ct Act article 4, to, among other things, modify a prior order of child support.
The parties were married in 1985 and have seven children. When they separated in 1999,petitioner (hereinafter the mother) successfully applied in Family Court for temporary custody,child support and spousal support. The mother's action for divorce was dismissed in 2003 bySupreme Court, Saratoga County where all support matters had been consolidated. Protractedlitigation and appeals have followed (Matter of Yarinsky v Yarinsky, 36 AD3d 1135 [2007] [hereinafterYarinsky III]; Yarinsky vYarinsky, 25 AD3d 1042 [2006]; Yarinsky v Yarinsky, 2 AD3d 1108 [2003]). Most recently, inYarinsky III, we increased the child support obligation of respondent (hereinafter thefather) from $4,491 per month to $6,016 per month and decreased his monthly spousal supportobligation from $1,500 to $1,200. We directed the Saratoga County Support Collection Unit torecalculate the adjusted amount of the total combined arrears, which would be retroactive to1999, the date of the mother's support application (see Domestic Relations Law §236 [B] [6] [a]; [7] [a]).
After protracted proceedings and hearings, the parties ultimately agreed upon the amount ofarrears which, after various credits and offsets, was established to be $101,815 (as of November15, 2007). That amount is not now in dispute. By amended petition, the mother had [*2]requested a money judgment with interest for the full arrearageamount and/or an increase in the amount of monthly arrears payments from $500 per month to"at least $1,000 monthly" in view of the large amount of arrears due.[FN*]Family Court denied the relief requested. The mother appeals.
Initially, the mother contends that Family Court should have granted her request for a moneyjudgment with interest for the full amount of the arrears. We disagree. To be sure, where a partyfails to comply with any lawful order of support, Family Court shall enter an order for a moneyjudgment for the total amount of child support arrears (see Family Ct Act § 454[2] [a]; § 460 [1]). Here, however, there has been no finding that the father failed tocomply with any lawful order of support relevant to this proceeding, and no such finding iswarranted. As Family Court aptly stated,"the arrearage sum here was a result of an appellatememorandum decision and order[, Yarinsky III,] which recalculated the sum of childsupport and spousal support and directed the adjustment of the calculations[,] . . .retroactiv[e] to the original filing date of 1999. This retroactive recalculation was the source ofthe sum of arrears, and in no reasonable interpretation of these circumstances can [the father] bedeemed to have failed to comply with a lawful order, since the obligations which it calculates asunpaid support, were generated ex post facto." Since the father's arrearage did not result from afailure to comply with a lawful support order, the court properly denied the request for a moneyjudgment and, likewise, interest (see Family Ct Act § 454 [2] [a]; § 460 [1]).
We are, however, persuaded by the mother's claim that payment of the monthly sum of $500toward arrears is inadequate given that the total adjusted amount was in excess of $100,000 as ofNovember 2007 (see Matter of Fowler vRivera, 53 AD3d 659, 659 [2008]). Significantly, the $500 payment was set in a 2005Support Magistrate decision and order, affirmed by Family Court, at a time when the totalarrearage was insubstantial. While the father is correct that this Court did not alter the monthlysum in Yarinsky III, we decline his request to invoke the discretionary doctrines of lawof the case or collateral estoppel so as to preclude the mother's request to increase the monthlypayment amount after the substantial total amount of arrears were first calculated and agreed toin late 2007 (see Matter of Russo vIrwin, 49 AD3d 1039, 1041 [2008]; cf. Matter of Richard SS., 55 AD3d 1001, 1002 [2008]). FamilyCourt has continuing jurisdiction over support proceedings (see Family Ct Act §451) and, under these circumstances, we do not find that it would have been fair to the parties toreevaluate the adequacy of the amount of the monthly arrear payments in advance of adetermination of the total adjusted arrear amount.
Further, even were we to assume, as did Family Court, that a substantial change incircumstances analysis is warranted when addressing an application to increase installmentpayments on arrears (as distinguished from a modification to the amount of monthly support)(see Domestic Relations Law § 236 [B] [9] [b]), we would find that the mothermade the requisite showing here. The considerable amount of the child support arrears and theunduly protracted length of time it would take to pay the sum in full at the $500 per month setrate, without interest, constitute an unanticipated change in circumstances sufficient to warrantreevaluation of the rate previously established. Notably, at the established rate it would take over[*3]16 years for the father to complete payment of his retroactivechild support obligation, at which time his two youngest children would be in their late 20s. Inour view, monthly payments of $1,000 are reasonable and adequate, commensurate with thefather's ability to pay, and coincide with the minority years of the younger children (seeFamily Ct Act § 451; see also Domestic Relations Law § 236 [B] [7] [a]).We exercise our discretion to order that the $1,000 monthly payments toward arrears beginMarch 1, 2009, and continue until the total adjusted amount is paid, with full credit for allpayments made to that date (see Family Ct Act § 451; Domestic Relations Law§ 236 [B] [7] [a]).
Finally, we find no abuse of discretion in Family Court's denial of the mother's request forcounsel fees (see Family Ct Act § 438 [a]). While we have previously noted thevast financial disparity between the parties (Yarinsky v Yarinsky, 36 AD3d at 1141),that does not translate into a mandate that such fees be awarded in every successive dispute. Theparties' remaining contentions lack merit.
Rose, Kane and Kavanagh, JJ., concur; Spain, J., not taking part.
Ordered that the order is modified, on the law and the facts, without costs, by increasingrespondent's monthly payments toward arrears to $1,000, effective March 1, 2009, and, as somodified, affirmed.
Footnote *: The origin of the $500 permonth payments was a June 24, 2005 decision of the Support Magistrate, adopted by FamilyCourt, which was not altered by our 2007 decision in Yarinsky III.