SR v. JR

Unpublished Opinion

Counsel for the Plaintiff Mary Grace Elizabeth Condello, Esq.

Counsel for the Defendant: Nicole Gabrielle Santo, Esq., Davidoff Hutcher & Citron LLP

HON. RONALD CASTORINA, JR., JUSTICE OF THE SUPREME COURT.

The following e-filed documents listed on NYSCEF (Motion Seq. No. 002) numbered 88-119, 155 and (Motion Seq. No. 003) numbered 122-137, 151-154, 156 were read on these motions.

All issues except for Plaintiff's request for a modification of Child Support were resolved between the parties on June 18, 2024, and memorialized in a short form order on consent. (NY St Cts Filing [NYSCEF] Doc No. 155; 156).

Upon the foregoing documents, and after oral argument conducted in court on June 18, 2024, on Motion Sequence No. 002 and Motion Sequence No. 003, Motion Sequence No. 002 and Motion Sequence No 003 are resolved and therefore, it is hereby, ORDERED, that Plaintiff's request for an upward modification of child support is GRANTED; and it is further, ORDERED, that Defendant's request for relief in the form of a downward modification of monthly child support is DENIED; and it is further, ORDERED, that commencing on August 1, 2024, Defendant shall pay Plaintiff child support in the monthly sum of $1,971.08 [One Thousand Nine Hundred Seventy-One Dollars and Eight Cents]; and it is further, ORDERED, that the pro rata shares for add-on expenses as defined by the parties' stipulation of settlement are modified commencing on August 1, 2024, as follows: Plaintiff's pro rata share shall be 24% and Defendant's pro rata share shall be 76%; and it is further, ORDERED, that the Clerk of the Court shall enter judgment accordingly.

Memorandum Decision

I. Procedural History

Judgment of Divorce was granted by the Supreme Court on March 24, 2022. Plaintiff brought Post-Judgment Motion Sequence No. 002 by Order to Show Cause on December 28, 2023, seeking among other relief, an upward modification of the basic child support and child support add on expenses for the subject child, RC born on XX XX, 2005, pursuant to Domestic Relations Law § 236 [B] [9] [2] [ii]. Defendant filed cross Motion Sequence No. 003 in opposition on April 24, 2024.

Plaintiff filed opposition to Motion Sequence No. 003 and reply on Motion Sequence No. 002 on May 21, 2024. Defendant filed reply on Motion Sequence No. 003 on May 28, 2024. All issues except for the issue of child support modification were resolved between the parties on June 18, 2024, and memorialized in a short form order on consent. (NY St Cts Filing [NYSCEF] Doc No. 155; 156). Oral argument was heard by the Court on the issue of child support modification on June 18, 2024.

II. Facts

Plaintiff and Defendant were married on July 20, 2002. There is one child of the marriage, to wit: RC, born XX XX, 2005. The Plaintiff commenced this action for divorce on or about September 1, 2020. Parties entered into a stipulation of settlement on July 12, 2021, which resolved all issues ancillary to the parties' divorce. (NY St Cts Filing [NYSCEF] Doc No. 94; 126). A Judgment of Divorce was signed by the Hon. Ralph Porzio on March 24, 2022, and entered in the office of the Richmond County Clerk on April 12, 2022. (NY St Cts Filing [NYSCEF] Doc No. 92; 125). The Judgment of Divorce incorporated but did not merge the stipulation of settlement.

Pursuant to the Judgment of Divorce, the Defendant was ordered to pay child support to the plaintiff for the child of the marriage in the amount of $1,289.00 a month. (see id). The parties stipulated to that amount in the stipulation of settlement, attributing to the Defendant an adjusted gross income of $134,628.00, and attributing to the Plaintiff an adjusted gross income of $0.00. (NY St Cts Filing [NYSCEF] Doc No. 94; 126). The calculations in the stipulation of settlement complied with the Child Support Standards Act. (see id). The agreement set the Plaintiff's pro rata share of add-on expenses at 32% and the Defendant's pro rate share at 68%. (see id).

The agreement further provided that "[c]ommencing on July 1, 2021 and continuing each month thereafter, Defendant shall pay and make available to Plaintiff the sum of $1,110.00 per month, as and for maintenance through August 31, 2027 at which point the [Defendant's] obligation to pay support shall cease. (see id).

In October 2021, after the parties entered into the Custody and Parenting agreement, the child, RC, started exhibiting medical and psychological issues. (NY St Cts Filing [NYSCEF] Doc No. 89). The child has been diagnosed with the following: Intellectual Disability Disorder, learning Disability, ADHD, Social Pragmatic Disorder, Generalized Anxiety Disorder and Autoimmune Encephalitis. (see id). The New York State Department of Health Office for People with Disabilities (OPWDD) has determined that the child has a developmental disability and is eligible to apply for OPWDD services. (NY St Cts Filing [NYSCEF] Doc No. 95).

The child was evaluated by Start Psychiatric Services and one of the recommendations was that the child go to therapy if not talk therapy, then art or music therapy. (NY St Cts Filing [NYSCEF] Doc No. 96). The child was enrolled in art therapy and the child's doctor, Elizabeth A. Darcy, MD, has found the "[a]rt therapy has been extremely beneficial and conducive for [the child's] high complex behaviors and disabilities. It is essential for [the child's] needs to continue receiving Art Therapy due to her multiple diagnosis". (NY St Cts Filing [NYSCEF] Doc No. 97).

The child's neuropsychiatrist, Deepti Anbarasan, MD, also recommends that the child continue with art therapy. Dr. Anbarasan recommendation is as follows:

Due to a combination of severe symptoms related to autism spectrum disorder and social anxiety disorder, she has difficulties with frustration tolerance and has limited ability to effectively communicate and engage with other people, including therapists. Given that [the child] will not be able to engage in traditional psychotherapies due to these issues, I believe art therapy will greatly benefit her and alleviate symptoms. (NY St Cts Filing [NYSCEF] Doc No. 98)

Excluding child support paid by the Defendant to the Plaintiff, Plaintiff currently receives the following:

Monthly	Annually
NYPD Pension Benefits	$2,519.62	$30,235.44
Spousal Maintenance	$1,110.00	$13,320.00
Child's SSD	$1,672.00	$20,064.00

(NY St Cts Filing [NYSCEF] Doc No. 134).

Defendant currently receives the following:

Monthly	Annually
Pensions & Annuities	NA	$109,300.00
Social Security Benefits	NA	$40,139.00
Magician Business	NA	$2,874.00
Qualified Dividends	NA	$142.00
Total	NA	$152,455.00

(NY St Cts Filing [NYSCEF] Doc No. 131).

Since the parties Judgment of Divorce was granted, Defendant's gross annual income has increased from $134,628.00 to $152,455.00, which is an increase of $17,827.00 or 13.3%.

III. Income

"Income shall mean income as defined in the child support standards act and codified in section two hundred forty of this article and section four hundred thirteen of the family court act[.]" (see Domestic Relations Law § 236 [B] [5-a] [b] [4]).

Domestic Relations Law § 240 [1-b] [b] [5] provides as follows:

(5) "Income" shall mean, but shall not be limited to, the sum of the amounts determined by the application of clauses (i), (ii), (iii), (iv), (v) and (vi) of this subparagraph reduced by the amount determined by the application of clause (vii) of this subparagraph:

(i) gross (total) income as should have been or should be reported in the most recent federal income tax return. If an individual files his/her federal income tax return as a married person filing jointly, such person shall be required to prepare a form, sworn to under penalty of law, disclosing his/her gross income individually;

(ii) to the extent not already included in gross income in clause (i) of this subparagraph, investment income reduced by sums expended in connection with such investment;

(iii) to the extent not already included in gross income in clauses (i) and (ii) of this subparagraph, the amount of income or compensation voluntarily deferred and income received, if any, from the following sources:

(A) workers' compensation,

(B) disability benefits,

(C) unemployment insurance benefits,

(D) social security benefits,

(E) veterans benefits,

(F) pensions and retirement benefits,

(G) fellowships and stipends,

(H) annuity payments, and

(I) alimony or maintenance actually paid or to be paid to a spouse who is a party to the instant action pursuant to an existing court order or contained in the order to be entered by the court, or pursuant to a validly executed written agreement, in which event the order or agreement shall provide for a specific adjustment, in accordance with this subdivision, in the amount of child support payable upon the termination of alimony or maintenance to such spouse; provided, however, that the specific adjustment in the amount of child support is without prejudice to either party's right to seek a modification in accordance with subparagraph two of paragraph b of subdivision nine of part B of section two hundred thirty-six of