| LiGreci v LiGreci |
| 2011 NY Slip Op 06371 [87 AD3d 722] |
| August 30, 2011 |
| Appellate Division, Second Department |
| Kenneth LiGreci, Respondent, v Teresa LiGreci,Appellant. |
—[*1] Kenneth LiGreci, Staten Island, N.Y., respondent pro se.
In a matrimonial action in which the parties were divorced by judgment dated October 8,2002, the defendant appeals, as limited by her brief, from so much of an order of the SupremeCourt, Richmond County (Maltese, J.), dated October 9, 2009, as granted the plaintiff's motion toterminate his child support and maintenance obligations, and to cancel all arrears of child supportand maintenance.
Ordered that the order is modified, on the law, (1) by deleting the provision thereof grantingthat branch of the plaintiff's motion which was to terminate his maintenance obligation, andsubstituting therefor a provision denying that branch of the motion, and (2) by deleting theprovision thereof granting those branches of the plaintiff's motion which were to cancel all childsupport and maintenance arrears; as so modified, the order is affirmed insofar as appealed from,without costs or disbursements, and the matter is remitted to the Supreme Court, RichmondCounty, for a hearing on the issues of child support and maintenance arrears.
The parties were divorced by judgment dated October 8, 2002. Pursuant to that judgment, theSupreme Court awarded the defendant former wife child support for the parties' three children inthe sum of $6,000 per month, and maintenance in the sum of $4,000 per month.
In July 2007 the plaintiff former husband moved to terminate his child support obligations,as the parties' two daughters had turned 21, and their son was now living with him. He alsomoved to terminate his maintenance obligation, claiming that he could not afford to paymaintenance because he was disabled, unemployed, unable to work, and living on publicassistance and money from family members. The plaintiff claimed that he had paid the defendantthe sum of $4,000 per month, borrowed from family members, which included payments forsome items not included in the judgment of divorce, such as monthly payments for healthinsurance. The defendant claimed that the plaintiff was actually working for and receiving moneyfrom family businesses. She further alleged that the plaintiff was in arrears for child support andmaintenance.
The Supreme Court granted those branches of the plaintiff's motion which were to terminatehis child support and maintenance obligations, and to cancel all support and maintenance [*2]arrears. The Supreme Court credited the plaintiff with payments foritems not included in the judgment of divorce, and found that the plaintiff was disabled andunable to work. The Supreme Court further found that the plaintiff's income was below thepoverty income guidelines as reported by the federal Department of Health and Human Services,and that he was living on public assistance, and therefore he was unable to make support ormaintenance payments, or to pay arrears.
The Supreme Court erred in awarding the plaintiff credits for payments he made for healthinsurance, cell phones, and an automobile. The plaintiff's voluntary payments for the benefit ofthe children, not made pursuant to a court order, may not be credited against the amounts duepursuant to the judgment of divorce (see Horne v Horne, 22 NY2d 219, 224 [1968]; Matter of Hang Kwok v Xiao YanZhang, 35 AD3d 467 [2006]; Matter of Finell v Finell, 25 AD3d 703 [2006]; Matter ofGleason v Gleason, 247 AD2d 384 [1998]; Lefkow v Lefkow, 188 AD2d 589[1992]; Soltow v Soltow, 47 AD2d 652 [1975]). The plaintiff had no right to have thesum of payments he made voluntarily deducted from the sums he was obligated to pay (seeHorne v Horne, 22 NY2d at 224).
The Supreme Court properly found that the plaintiff's child support obligation hadterminated. The parties' daughters became emancipated on January 22, 2006, and January 23,2007, respectively, and the parties' son began to live with the plaintiff in December 2008. TheSupreme Court correctly determined that no support could be calculated for each child beyondthose dates (see Family Ct Act § 413 [1] [a]; Matter of Forte v Forte, 304AD2d 577 [2003]; Matter of Weis v Castagna, 292 AD2d 625 [2002]).
However, the Supreme Court erred in terminating the plaintiff's maintenance obligation. Theplaintiff failed to show that he was entitled to such termination. Where a party seeks to modify amaintenance obligation set forth in a judgment of divorce, that party must show a substantialchange in circumstances warranting such a modification. Such a change may include financialhardship (see Domestic Relations Law § 236 [B] [9] [b] [1]; Matter of Perrego v Perrego, 63 AD3d1072 [2009]; Zolan v Zolan, 2AD3d 632 [2003]; Sass v Sass, 276 AD2d 42 [2000]; Matter of Prisco vBuxbaum, 275 AD2d 461 [2000]; Sitler v Sitler, 266 AD2d 202 [1999]). Indetermining if there is a substantial change in circumstances to justify a downward modification,the change is measured by comparing the payor's financial circumstances at the time of themotion for downward modification and at the time of the divorce, or the time when the ordersought to be modified was made (seeMatter of Perrego v Perrego, 63 AD3d 1072 [2009]; Matter of Prisco vBuxbaum, 275 AD2d 461 [2000]; Matter of Sannuto v Sannuto, 21 AD3d 901 [2005]; Klapper vKlapper, 204 AD2d 518 [1994]).
The plaintiff failed to establish that there had been a reduction in his income since thejudgment of divorce was issued. The plaintiff himself claims that his income was reduced fromhis prior income as of September 11, 2001, 13 months before the entry of the judgment ofdivorce (see Matter of Fein vGilchrist, 23 AD3d 558 [2005];see also Matter of Mazzola v Lee, 76 AD3d 531 [2010]). In fact, the plaintiff's incomehad increased, at least for a time after the judgment of divorce was issued on October 8, 2002.
Furthermore, the letters from the plaintiff's physicians did not establish a change ofcircumstances since the October 8, 2002, judgment of divorce. According to these physicians, theplaintiff's ailments were a result of his work at the World Trade Center site on and afterSeptember 11, 2001. However, none of the physicians stated at what point the plaintiff becametotally disabled and unable to work. Thus, the letters do not establish a change in his conditionsince the judgment of divorce was issued.
Since the plaintiff failed to show that his financial and/or medical circumstances changed forthe worse after the judgment of divorce was issued, and his income increased at least for a timeafterward, the Supreme Court should have denied that branch of his motion which was toterminate his maintenance obligation.
The Supreme Court also erred in granting that branch of the plaintiff's motion which was tocancel all child support arrears. Domestic Relations Law § 236 (B) (9) (b) (2) (iii) providesthat child support arrears which have accrued prior to the date of an application to annul ormodify a prior [*3]order or judgment as to support shall not bereduced or annulled. However, Family Court Act § 413 (1) (g) provides that where thenoncustodial parent's income is less than or equal to the poverty income guidelines amount for asingle person, as reported by the federal department of health and human services, unpaid childsupport arrears in excess of $500 shall not accrue. Although Family Court Act § 413 (1)(b) (5) (vii) (E) provides that public assistance shall be deducted from income, Family Court Act§ 413 (1) (b) (5) (iii) (B) and (D) provide that income does include disability benefits andSocial Security benefits. Furthermore, Family Court Act § 413 (1) (b) (5) (iv) (D) providesthat the court may, in its discretion, attribute or impute income from other resources that may beavailable, including, but not limited to, money, goods, or services provided by relatives andfriends (see Matter of Ladd v Suffolk County Dept. of Social Servs., 199 AD2d 393[1993]).
Issues of fact exist as to the amount of the plaintiff's income and his ability to pay childsupport arrears. Issues of fact also exist as to whether the plaintiff was working for familybusinesses and/or operating a catering business, and whether he failed to report the resultingincome. Furthermore, the plaintiff acknowledged that he received money from his family, whicha court may impute as income to the plaintiff. There are also triable issues of fact as to whetherand when the plaintiff was living below the income level provided in the poverty incomeguidelines. Given these issues of fact, it is unclear whether the plaintiff's allegedly impoverishedcircumstances dictated dropping his support obligation to $0 (see Matter of Rose vMoody, 83 NY2d 65, 67 [1993], cert denied 511 US 1084 [1994]). Thus, theSupreme Court erred in granting that branch of the plaintiff's motion which was to cancel allchild support arrears without first holding a hearing (see Lee v Lee, 18 AD3d 513 [2005]). Accordingly, we remit thematter to the Supreme Court for a hearing to determine the issues relating to the plaintiff'semployment history and income, and to determine the amount of child support arrears, if any,owed by the plaintiff.
The Supreme Court erred in granting that branch of the plaintiff's motion which was tocancel all maintenance arrears. Domestic Relations Law § 236 (B) (9) (b) provides that noarrears of maintenance which have accrued prior to the making of an application to modify orannul a prior order or judgment as to maintenance may be modified or annulled unless thedefaulting party shows good cause for failure to make an application for relief from the judgmentor order directing payment prior to the accrual of such arrears. Here, the plaintiff failed to movefor relief from the judgment of divorce until after maintenance arrears had accrued, and failed toshow good cause for his failure to move prior to the accrual of such arrears.
Furthermore, there are issues of fact as to the amount of maintenance actually owed. Theplaintiff provided a spreadsheet of payments made to the defendant, including several paymentsfor which no purpose is specified, and it is not known whether those payments were formaintenance or some other purpose. Also, the defendant claimed to have received the sum of$26,830.50 in payments, and claimed the sum of $469,954.98 in arrears as of September 12,2006, but it is not known how much of those payments or arrears was for maintenance. Theplaintiff claimed that he paid the defendant approximately $4,000 per month, but some of thatmoney was voluntarily paid, not pursuant to a court order, for purposes other than maintenance.Since these issues of fact make it impossible to ascertain the actual amount of maintenancearrears owed by the plaintiff to the defendant, the matter should be remitted to the Supreme Courtfor a hearing to determine the amount of maintenance arrears, if any, owed by the plaintiff(see Rogers v Rogers, 151 AD2d 738 [1989]). Skelos, J.P., Balkin, Leventhal and Lott,JJ., concur.