Divorce Lawyers New York - Recent Family Law Decisons (48)
RECENT FAMILY LAW DECISIONS (48)
The trial court erred in holding that modification of child support is allowable only upon a showing that the noncustodial parent’s ability to pay has increased; on remandment, the court was ordered to consider all relevant factor in making its determination, including the income and other assets of both the parents, and the income and assets of the children.
Whenever a request for modification of child support is sought, it is the duty of the court in which the action has been brought to ascertain all the pertinent facts and circumstances and to determine whether the award is fair and equitable or should be modified.
Just as in initially determining the amount of support, the facts to be considered by the trial court in modifying the support provisions of the divorce decree includes the ages of the parties, their condition of health, the property and income of the mother, the property and income of the father, and the station in life of the parties.
Not Allowed
Trial court did not err in declining to modify father’s child support obligation because, in determining whether modification should occur, the court was charged with first looking to see whether there had been a change in the father’s net income and, in so doing, the court properly counted IRA disbursements father received after the divorce as “net income” and determined that those substantial disbursements undercut his argument that he was suffering from financial hardship.
Although various household expenses were expenses that could have been partly attributable to the children, wife had not shown any specific increased needs of the children for which husband was not already voluntarily paying; to the extent that wife demonstrated that some of the children’s needs for which husband was already providing increased, the trial court modified the judgment and ordered husband to pay these expenses; although it was clear that the husband’s income and net worth had increased over the years, his responsibilities had also increased; further, wife also had an obligation to financially contribute to the support of the family; there was nothing in the record to suggest that she was unable to do so; the trial court increased the husband’s payments by the amount it felt the children’s needs had increased; on this record, the trial court did not abuse its discretion in refusing wife’s request for additional sums.
Arguments advanced by wife that the cost of living had increased and that the children had grown older were previously contemplated by the parties and subsequently provided for in the settlement agreement therefore, record supported the conclusion that the findings of the trial court increasing child support per wife’s modification request were against the manifest weight of the evidence.
The duty of the respondent to pay support was not enlarged, nor was the petitioner’s need for support diminished in any way during or after post-dissolution, cohabitational relationship therefore respondent’s petition for modification was dismissed.
Father’s petition for modification of child support was properly denied where the original judgment of divorce indicated that both parties intended that their son would receive support if he attended college, both parties acknowledged that it was contemplated that their son would be attending college in the near future and any decrease in the financial needs of the mother or increase in the father’s financial need generated by a prior change in custody was minimal.
