K. v. K.
| Decision Date | 30 September 1975 |
| Citation | 83 Misc.2d 911,373 N.Y.S.2d 486 |
| Parties | . Lenore Z. K., mother, Mitchell Ira, Petitioner, v. Albert K., Respondent. Family Court, City of New York, New York County |
| Court | New York City Court |
Petitioner, the divorced wife of respondent, petitioned for an upward modification of the child support provided in a divorce decree granted by the New York State Supreme Court in 1971, alleging the child's increased needs. Respondent then cross-petitioned for a downward modification of both the child support and the alimony provided in the 1971 decree; he alleged a drastic decrease in his financial resources and that petitioner, though not employed at the time of the decree, is now employable. The Court concludes that increased child support is warranted by the child's needs and respondent's means. However, a reduction of alimony will be directed on the basis of petitioner's employability.
Respondent's argument of decreased means since entry of the divorce decree, presents a novel question as to the proper application of the rule permitting downward modifications on that basis, when the decree was entered without judicial consideration of respondent's means. Other issues of law herein are whether the child support order should include private academic school and also religious school tuition, despite the Constitutional prohibition on State aid to religion; whether respondent's capital, as distinguished from income, should be a factor in determining increased child support; and the relevance of petitioner's employability.
Sections 461 and 464 of the Family Court Act provide, codifying common-law doctrine, that this Court 'may entertain an application' for modification of a matrimonial decree on the ground of 'changed circumstances'. Respondent argues that a downward modification of the 1971 divorce decree is warranted in that his income from his two business enterprises was in 1971 over $90,000, and in 1974 as well as 1973, only $35,400 (figures are stated herein to the nearest hundred) Petitioner contends, however, that respondent's present circumstances should be compared with his circumstances in 1967 when his income from his businesses was a low of $29,000 (his income after taxes being $24,700 in 1967 and $33,600 in 1974.)
Petitioner's contention is grounded on the fact that her present alimony of $150 a week (plus respondent's payment of petitioner's taxes thereon) and child support of $75 a week, as provided in the 1971 divorce decree, were first ordered in a Massachusetts separation decree dated June 1968. The minutes of the Massachusetts court show that its decree was based on evidence as to needs and means, including respondent's 1967 tax return. By contrast, the 1971 conversion divorce decree was based on an informal agreement by counsel, accepted by the New York court without any review of the circumstances, to continue the Massachusetts support awards, plus a maximum of $1,500 yearly for private school and religious training for the child, a maximum of $1,000 yearly for his summer camp after the age of 8, and insurance for the child's benefit. For reasons stated below, the decrease in respondent's income since the 1971 decree does not, in this Court's opinion, entitle him to a reduction of the decreed amounts.
Petitioner's attorney in the divorce proceedings had been given profit-loss statements for respondent's companies, which indicated that his 1971 income was over $90,000. There is no evidence as to why the then-attorney for petitioner (who was the defendant in the conversion divorce proceeding) agreed to the weekly support figures that had been fixed when respondent's income was less than half as much. Possibly, though a prominent matrimonial attorney, he erroneously felt bound by the alimony awarded in the separation decree; the Court of Appeals had not yet decided Kover v. Kover, 29 N.Y.2d 408, 328 N.Y.S.2d 641, 278 N.E.2d 886, in which the high tribunal for the first time upheld Appellate Division decisions that a court granting a conversion divorce after a separation decree may make a de novo alimony determination. Whatever the reason for his agreement (and reasons for an agreement are various: compare Matthews v. Schusheim, 35 N.Y.2d 686, 361 N.Y.S.2d 160, 319 N.E.2d 422), the question is whether this court must view the base circumstances for the purpose of determining whether respondent's present income justifies a reduction of support, as the circumstances that in fact existing and were known to petitioner's then-attorney at the time of the divorce decree.
Because of the principle that 'a court, having performed its function, may not lightly be asked to do it all over again' (Kover, 29 N.Y.2d at p. 413, 328 N.Y.S.2d at p. 643, 278 N.E.2d at p. 887), a court must assume the reasonableness of a previous support decision and, in considering modification, compare the present circumstances with those evident in the findings or record of the prior proceedings. See e.g. Levene v. Levene, 165 App.Div. 953, 150 N.Y.S. 708 (1st Dept.); Zeitz v. Zeitz, 262 App.Div. 750, 751, 27 N.Y.S.2d 283, 284 (2nd Dept.). When the decree is based on an agreement rather than judicial findings, the modifying court, recognizing the force of an agreement and that it 'was at least impliedly approved by the divorce court' (McMains v. McMains, 15 N.Y.2d 283, 286, 258 N.Y.S.2d 93, 96--97, 206 N.E.2d 185, 187--188), may view the base circumstances, to be compared with the present ones, as those in contemplation of the parties at the time of the agreement. See Swartz v. Swartz, 43 A.d.2d 1012, 1014, 349 N.Y.S.2d 1005, 1008--1009 (4th Dept.).
That practice is not compelling here however, since the divorce court's minutes reflect no formal agreement (compare Gullo v. Gullo, 46 A.D.2d 991, 361 N.Y.S.2d 769, 4th Dept.). Further, petitioner's acceptance in 1971 of the prior alimony figure despite respondent's increased income, cannot be construed as an agreement to its reduction when his income, though diminished, continues to be greater than it was at the time such alimony was fixed by the separation decree. Finally, to use respondent's 1971 income as the base circumstance would from one aspect derogate from the principle of respect for a prior judicial determination. For, alimony judicially fixed in the contested Massachusetts proceeding as commensurate with respondent's 1967 income, would thereby in effect be treated as commensurate with his doubled income in 1971. The Massachusetts court had paid particular regard to respondent's 1967 income, reducing its temporary support order after respondent submitted his 1967 tax return.
In the pleading case of a downward modification because of the divorced husband's decreased income since the divorce, the Court indicated its assumption that the decreed amount, while incorporated from a separation agreement, had been commensurate with the husband's actual income at the time of the decree. Goldman v. Goldman, 282 N.Y. 296, 299, 26 N.E.2d 265, 266. Nor does there appear to be any case of reference to a year's income as the base circumstance where, as here, the decreed alimony clearly was not fixed in relation to respondent's income for that year.
The rule of changed circumstances--a procedural adjunct to the substantive principle of support obligations commensurate with a respondent's means--cannot be applied arbitrarily, to defeat that principle. For the foregoing reasons neither the actuality of respondent's high 1971 income nor the petitioner's attorney's knowledge of it nor the entry of the divorce decree in 1971, is persuasive that petitioner's alimony should be reduced because of respondent's decreased income since 1971. While respondent's changed circumstances since the decree gives the court jurisdiction to consider its modification, the discretionary relief of a reduction of alimony on that ground is denied.
As to respondent's petition for a downward modification of child support, it is even clearer than in the case of petitioner's alimony that his application must be rejected. The divorce court did nothing but accept an informal agreement on child support; and a child is in no way bound even by a formal agreement. Van Dyke v. Van Dyke, 305 N.Y. 671, 112 N.E.2d 766, affirming 278 App.Div. 446, 106 N.Y.S.2d 237 (3rd Dept.). Indeed, the court has jurisdiction and discretion to increase decreed child support not only in the face of an agreement but even in the absence of a change of circumstances. See Langerman v. Langerman, 303 N.Y. 465, 468, 104 N.E.2d 857, 858; 203 Misc. 230, 116 N.Y.S.2d 420, Dom.Rels.Ct., N.Y.C.) 1
A child's private-school tuition can, under section 416 of the Family Court Act, be included in a support order when appropriate 'in the light of respondent's pecuniary ability.' Kotkin v. Kerner, 29 A.D.2d 367, 368, 369, 288 N.Y.S.2d 244, 245--246 (1st Dept.) See also Hahn v. Hahn, 40 A.D.2d 624, 625, 336 N.Y.S.2d 500, 502 (4th Dept.); Matter of Hahn v. Hahn, 78 Misc.2d 585, 586--7, 358 N.Y.S.2d 236, 238--239 (Monroe Cnty.), affd. 44 A.D.2d 913, 356 N.Y.S.2d 231; Prospero v. Prospero, 39 A.D.2d 634, 635, 331 N.Y.S.2d 318, 320--321 (4th Dept.); Matthews v. Matthews, 14 A.D.2d 546, 217 N.Y.S.2d 736 (2nd Dept.). Respondent's 1971 agreement demonstrates his acceptance of the appropriateness of private school for the child, and he does not question the desirability of the child's continuance at his present school. On that ground Matter of G. v. G., 42 A.D.2d 555, 345 N.Y.S.2d 60 (1st Dept.) upholding a father's refusal to pay for tuition, is clearly distinguishable.
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