Arnoldt v. Arnoldt
| Decision Date | 06 April 1990 |
| Citation | 554 N.Y.S.2d 396,147 Misc.2d 37 |
| Parties | Lynn ARNOLDT, Plaintiff, v. Andreas ARNOLDT, Defendant. |
| Court | New York Supreme Court |
England & England, P.C., Centereach, for plaintiff.
Joseph S. Ruocco, Garden City, for defendant.
The novel question presented in this post judgment matrimonial proceeding concerns whether the defendant/father may unilaterially discontinue mandated child support payments until such time as the dollar amount equals the retroactive lump sum award of social security disability payments received by the plaintiff/mother on behalf of the children, as a result of a disability award to the father.
It is difficult for this court to understand the rationale of a decision which would allow a former husband to unilaterally determine to withhold child support payments without benefit of a court order or agreement.
However, apparently the only cited reported case law on this issue is that of Passaro v. Passaro, 92 A.D.2d 861, 459 N.Y.S.2d 839 [2nd Dept., 1983], where the Appellate Division, Second Department, in modifying the trial court determination directed that the former husband was entitled to a credit for the amount of retroactive social security disability payments received by the former wife on behalf of the children.
Thus, at first blush it would appear that this court would be constrained, even though reluctantly, to follow the holding in Passaro and deny the former wife's application for a money judgment for arrears in child support.
However, this court now holds that Passaro, supra, decided 1983, is no longer controlling as to that aspect of the decision of the Appellate Division insofar as mandating the court to grant the defendant a retroactive credit for those retroactive amounts of social security payments received by the mother on behalf of the children as against arrears in child support. In this respect the court relies upon the 1986 amendment to DRL § 244, effective August 5, 1986, which was enacted to preclude a party from utilizing self-help and then seeking, at a later date, to eliminate child support retroactively.
The parties to this post judgment matrimonial action were divorced pursuant to an April 20, 1985 judgment which incorporated, but did not merge, a March 27, 1985 stipulation of settlement. Pursuant to the aforementioned judgment, defendant is obligated to pay plaintiff $173.07 bi-weekly for the support of each of the parties' two infant issue.
At the time, defendant, age 43, was employed as an engineer with the Nassau County Department of Public Works. However, on December 19, 1988, he was declared disabled due to a chronic asthmatic condition and awarded benefits retroactive to January 1988. Beginning in March, 1989, plaintiff, therefore, began receiving $240.00 per month per child in social security benefits. Simultaneously, plaintiff received $3,045.00 in retroactive benefits from social security for the children. As a result in April, 1989, defendant unilaterally suspended child support payments seeking credit for the amount provided by social security, although no application for modification pursuant to DRL § 236B 9(b) was ever made. Plaintiff construes defendant's duty to pay support to be an independent obligation and, therefore, seeks a money judgment for approximately six months in child support arrears, or $4,093.10 ($744.20 per month). Relying on Passaro v. Passaro, 92 A.D.2d 861, 459 N.Y.S.2d 839 (2nd Dept., 1983), defendant asserts, without cross-moving, that prospectively his obligation should be reduced to reflect the additional $240.00 plaintiff receives from social security and that he is entitled to a credit for the amount of social security benefits paid to his children.
In Passaro, a wife and custodial parent on public assistance instituted an enforcement proceeding against her former husband for arrears. The husband cross-moved for downward modification due to his...
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