Court Imputes Income to Calculate Child Support

Posted on July 30, 2007 by Daniel Clement

This is a common scenario - you are seeking a court order for child support, but the non-custodial parent is claiming an annual income far less than you suspect he/she actually earns.

One way to prove that a party’s actual income is higher than his/her reported income is to illustrate how his/her reported lifestyle could not be supported by the reported income.

The Appellate Division in Strella v. Ferro ruled that: in calculating a party's child support obligation, the court "need not rely upon the party's own account of his or her finances, but may impute income based upon the party's past income or demonstrated earning potential.”

In that case, the father claimed that he had been unemployed and only recently begun to earn $500 per week despite having recently earned as much as $101,000 per year. The Court imputed an income of $96,000 to the father. In doing so, the Appellate Court noted that:

Here, the father's claimed annual household expenses were approximately double his claimed annual income in 2004 and 2005. Additionally, his financial data did not indicate that he used money from his savings or that he incurred greater debt to pay the remaining amount of his annual expenses not covered by his average annual income. During the relevant period, he did not liquidate any of his investments, he had no outstanding balance on his home equity line of credit, and his credit card statements showed no unpaid balances of a size and nature to correspond to his household expenses.

Clearly, in the absence of incurring debt or drawing down on savings, if the party’s expenses exceed his/her reported income, then the reported income must be under-reported. In such a case, the Court should look beyond the filed tax return to calculate the child support obligation

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Non Biological Father Liable for Child Support

Posted on April 24, 2007 by Daniel Clement

Robert Ambrogi in his Law.com Network Blog details the case of a man who learned during his divorce, that he was not the father of a child born during the marriage.   Notwithstanding the fact that he was not the child’s biological father, he was ordered to pay child support.  

. . . .through a DNA test 16 months after his divorce, Richard Parker learned that someone else had fathered the 3-year-old boy. Facing court-ordered child-support payments of $1,200 a month for 15 years, he immediately turned to the courts, claiming fraud by his wife. His case took him all the way to the Florida Supreme Court, which issued its decision in February in Parker v. Parker. Williams tells what happened:

"The Florida justices ruled 7-0 against Richard Parker. The Court ruled Parker must continue to pay $1,200 a month in child support. Parker's child support payments will total more than $200,000 over 15 years to support another man's child. Unfortunately, however, Florida has a one-year statute of limitations to prove fraud after a divorce, and Parker didn't file in time."

So, what would happen if this was a New York case?   The man would be responsible for child support.  A recent line of cases provide that where a “father,” who acknowledged or in any way accepted paternity of a child he later learns was not his, will be equitably estopped from denying paternity for child support purposes.  

While this may lead to unfair cases for the “wronged” father, the underlying policy is intended to protect the psychological and emotional well-being of the child.  Certainly, the child would be devastated if he/she is disavowed by his “parent.”

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Father Abandons Family, Fails to Pay Child Support and Loses Title to Marital Residence

Posted on April 11, 2007 by Daniel Clement

In a case where a husband abandoned his wife and children and failed for nine years to pay any child support, a Court ruled it was appropriate to set off the husband’s unpaid child support obligation against his interest in marital property.   Since the husband failed to pay child support for nine years, his interest in the martial home was set off against the amount of unpaid support. As a result, the Wife was entitled to full possession and title to the marital home. 

 In the case Pritchett v. Pritchett ( N.Y.L.J. 4/9/07(subscription required), Justice Darrell L. Garvin ruled that the husband’s abandonment of his family and failure to contribute any child support created a “substantially unequal burden on the [Wife] to the benefit of the [husband]. This benefit of the non-contributing spouse constituted an unjust enrichment which should be rectified.”

Applying the child support guidelines to the Husband’s income at the time he abandoned the family, the Court calculated the amount of unpaid child support arrears and the husband’s share of the child care, educational and medical expenses even though the Wife had not previously obtained an order requiring the payment of support.   

Since the child support arrears exceeded the value of the Husband’s equitable interest in the marital home, the Court transferred title to martial home to the Wife. 

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