Divorce Lawyers New York - Recent Family Law Decisons (53)
RECENT FAMILY LAW DECISIONS (53)
The question whether modification of child support should be retroactive is within the discretion of the trial court. Where there was an interim of over one year between the filing of the petition and the entry of the order of the order but at least five months of that delay was attributable to respondent’s willful failure to company with petitioner’s discovery requests, it was inequitable to allow respondent to benefit due to his dilatory behavior; the support order was made effective retroactive five additional months.
A court may, within its discretion, modify a support order retroactively to the date that the petition for modification was filed and, thus, child support payments in arrears which accrue thereafter do not become vested.
Review
A petition to modify child support must be decided on the facts of each case, and the decision rests within the sound discretion of the trial court.
A determination of the proper amount of child support, and modification thereof, lies within the sound discretion of the trial court and will not be set aside absent an abuse of that discretion, which occurs only where no reasonable man would take the view adopted by the trial court.
The decision of the trial court to modify or not to modify child support payments will only be disturbed if such decision is clearly against the manifest weight of the evidence.
The modification of child support payments is a judicial function; the court’s decision to modify the payment of child support is discretionary in nature and only takes effect prospectively.
Modification of child support payment rests within the sound discretion of the trial court and it will not be set aside unless the discretion of the trial court and it will not be set aside unless the finding is clearly contrary to the manifest weight of the evidence.
Considerable discretion is placed in the trial court and an order of modification of child support will not be disturbed on review, absent an abuse of discretion.
The court erred in its order modifying the decree of divorce which in effect provided that the defendant father need pay no more for the support of the minor children except when he requested that they be brought to his home and then he was required to pay plaintiff $30 on each and every occasion, where he was financially able to support the children.
Settlement Agreement
A settlement agreement provision that husband would not advance as a reason for modification of the child support payments any future employment of wife did not divest the court of its power to modify the divorce decree into which the agreement was incorporated.
Obligation
Where the trial court determined that the husband’s obligation to pay the second mortgage on the marital home was part of an order for support rather than part of a property distribution, the obligation was not dischargeable in bankruptcy proceedings.
The general rule is that the obligation of a parent to support his children terminates when the child reaches majority.
Once legal and physical custody is placed in one parent, that custodial parent has no obligation to pay child support to the noncustodial parent.
The parental duty of support extends until a child’s emancipation, unless otherwise agreed in writing by the parties or expressly provided in the judgment.
