Lenigan v. Lenigan

• Decision Date: 19 July 1990
• Citation: Lenigan v. Lenigan, 558 N.Y.S.2d 727, 159 A.D.2d 108 (N.Y. App. Div. 1990)
• Parties: Denise A. LENIGAN, Respondent, v. James W. LENIGAN, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 727

558 N.Y.S.2d 727

159 A.D.2d 108

Denise A. LENIGAN, Respondent, v. James W. LENIGAN, Appellant.

Supreme Court, Appellate Division Third Department.

July 19, 1990.

Hinman, Straub, Pigors & Manning (Peter L. Rupert, of counsel), Albany, for appellant.

McCarthy & Evanick (Ihor B. Evanick, of counsel), Albany, for respondent.

Before MAHONEY, P.J., and KANE, YESAWICH, LEVINE and MERCURE, JJ.

YESAWICH, Justice.

In 1987, after 7 1/2 years of marriage, plaintiff and defendant separated. The parties have one child, Kelly, who is currently age eight. After the separation, plaintiff applied to Family Court and was granted a temporary order of support which required defendant to pay her $100 per week and to continue making the mortgage payments on the marital residence as well as the electric and phone expenses.

Defendant apparently complied with this order except for a brief period when the parties were temporarily reconciled. Then, to defray arrearages claimed by plaintiff, defendant voluntarily increased his monthly support payments. Plaintiff never obtained a final order of support; Family Court eventually marked her petition dismissed after both parties repeatedly failed to appear, although there is no evidence that a formal order of dismissal was ever entered. Thereafter, plaintiff initiated this divorce action in Supreme Court and requested various pendente lite relief. Applying the recently enacted Child Support Standards Act (Domestic Relations Law § 240[1-b], Supreme Court issued an order directing defendant to pay plaintiff the following amounts weekly: (1) $523 for child support, (2) $29 for child care, (3) $9.50 for uninsured medical expenses, and (4) $73 for the child's special education needs occasioned by a hearing impairment. The court apparently determined that defendant's share of the child's special education expenses, like the child care and medical expenses, should also be prorated in the same proportion as each parent's income bears to the combined parental income (see, Domestic Relations Law § 240[1-b][c][7]; Reichler and Lefcourt, The New Child Support Standards Act, 62 New York State Bar Journal 36, 41 [Feb.1990]. In all, defendant's weekly child support obligation totaled $634.50. In addition to this amount, and other awards not challenged on this appeal, Supreme Court enjoined defendant to continue paying the mortgage in the amount of $751 per month, and to contribute $100 a week in spousal maintenance. On appeal, defendant maintains that because plaintiff failed to demonstrate changed circumstances, Family Court's support order was improperly modified and further that Supreme Court erroneously interpreted and misapplied the statutory child support guidelines.

Contrary to defendant's suggestion, Supreme Court did not modify an existing temporary order of support. Plaintiff effectively abandoned the original action and, consequently the temporary order terminated (see, Scheinkman, Practice Commentary, McKinney's Cons.Laws of N.Y., Book 14, Domestic Relations Law C236A:7, at 164, citing Senf v. Senf, 39 Misc.2d 1061, 242 N.Y.S.2d 343). And since plaintiff did not seek to modify a support provision contained in either a separation agreement or a judgment of divorce, she was not obliged to show a change in circumstances (cf., Matter of Brescia v. Fitts, 56 N.Y.2d 132, 140-41, 451 N.Y.S.2d 68, 436 N.E.2d 518; Boden v. Boden, 42 N.Y.2d 210, 213, 397 N.Y.S.2d 701, 366 N.E.2d 791).

There is force, however, in defendant's argument that the child support standards of Domestic Relations Law § 240(1-b) were incorrectly applied. The parties do not dispute that defendant's 1988 income, as reflected in their joint Federal income tax return, was $159,535.54, and that plaintiff's 1988 income was $10,692.46. Thus, the parties' gross income was $170,228 (see, Domestic Relations Law § 240[1-b][b][4], [5][i]. Supreme Court then deducted $31,740 for unreimbursed employee business expenses and $3,379.50 for Social Security contributions, ^* both of which were attributable to defendant's income, from the parties' gross income rather than from defendant's income alone (see, Domestic Relations Law § 240[1-b][b][5][vii][A], [H]. Had these items been correctly deducted, defendant's adjusted income would be $124,416.04, while the parties combined parental income would be $135,108.50.

Because Supreme Court's temporary order requires defendant to pay plaintiff maintenance but does not provide "for a specific adjustment * * * in the amount of child support payable upon the termination of * * * maintenance" (Domestic Relations Law § 240[1-b][b][5][vii][C], the statute does not allow defendant to deduct his $100 per week maintenance obligation in arriving at the amount of his income available for child support (see, 4 Foster-Freed-Brandes, Law and the Family § 2:11 [1990 supp], at 58). Were this a permanent order, however, the maintenance award should include a provision authorizing an application to the court for an adjustment or modification of the child support amount if at any time the maintenance payments should terminate (see, 4 Foster-Freed-Brandes, supra; Reichler and Lefcourt, The Child-Support Standards Act, New Legislation, NYLJ, June 30, 1989, at 28, cols 3-4); maintenance made pursuant to such an order would be deductible from the payor's income.

Using the corrected figures, the parties' total annual child support obligation is $22,968.45, computed by multiplying the combined parental income of $135,108.50 by 17% (the appropriate child support percentage for one child) (see, Domestic Relations Law § 240[1-b][b][3][i]. To determine the amount defendant must contribute annually to the child's upkeep ($21,130.97), the total child support amount ($22,968.45) is prorated in the same proportion as his income bears to the combined parental income ($124,416.04/$135,108.50 = 92%) (see, Domestic Relations Law § 240[1-b][c][2]. Translated into weekly payments, defendant is obligated to contribute $406.36 toward his child's support.

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