BY STEVEN L. ABEL
In an important child support decision, the New York State Court of Appeals (the state’s highest court), has decided that custodial parents are entitled to cost of living adjustments (increasing agreed upon child support), unless their agreement specifically waives the right to a cost of living adjustment. In the case of Tompkins County Support Collection Unit v. Chamberlin, 99 NY2d 328, 756 N.Y.S.2d 115 (Feb. 13, 2003), the court held that the Mother should receive $149.62 per week, rather than the $57 per week provided for in the parties’ agreement.
The court’s decision not to follow the agreement is sure to create some uncertainty about many previously signed agreements, as well as how to avoid the same kind of result in the future. This brief article will look at how the court got to its conclusion, and how to deal with cost of living adjustments in future mediations and agreements.
THE LAW
The Court of Appeals relied upon Family Court Act §413-a which is also Domestic Relations Law §240-c. (Why New York State duplicates much of the Domestic Relations Law in the Family Court Act is beyond the scope of this article, except to say that there is no logical reason for it.) Both laws are labeled “Review and cost of living adjustment of child support orders.” In essence, the law requires the Support Collection Unit to adjust child support orders when the consumer price index increases by 10% or more. The new order will go into effect unless there is an objection to it. An objection can be filed in court by any party or SCU. If an objection is filed, the court is to hold a hearing and then:
- Issue a new order in accordance with the child support guidelines, or
- Make no adjustments if that is appropriate.
Some technical points: the increase can only occur after two years have gone by; the increase can occur every two years; and the index used is the national index for urban consumers (CPI-U). See NY Social Services Law §111-n. There is no requirement for proof of a change of circumstance. The law also contains specific provisions for procedure which are not relevant here. The law went into effect on January 1, 1998.
THE CHAMBERLINS
Linda and Boyd Chamberlin were divorced in May 1985. The two children, then age 8 and 2, were in Linda’s custody. Boyd was ordered to pay child support of $70 per week. In May 1991, Linda and Boyd agreed to modify the divorce order by increasing the weekly child support to $100. They also agreed that when their older child was emancipated, Boyd’s support would be reduced to $57 per week.
In June 1999, the Tompkins County Support Collection Unit filed an adjusted order of support raising Boyd’s support to $64 per week. For the reasons that do not appear in the record, SCU simultaneously filed an objection to its own adjusted order. Boyd Chamberlin also objected. After some legal maneuvering, a hearing was held and the hearing examiner decided that Boyd’s child support should be $149.62 per week for one child. The Family Court judge upheld that decision but the Appellate Division, Third Department, disagreed and sent the case back to Family Court. Family Court next reduced child support to $64 per week, but SCU appealed further, resulting in the Court of Appeals decision.
RATIONALE FOR COLA ADJUSTMENT
The Court started its analysis of the law by reviewing the Federal statutes which require all states to adopt child support guidelines. In particular, there is a 1996 law directing all states to provide for periodic review and adjustment of child support orders. The general purpose of these laws is “to ensure the adequacy of child support orders…and [also ensure] that orders in compliance at the start would not necessarily continue to provide the guideline amount of support over time.” In making adjustments, the states are instructed to ensure that the state’s child support guidelines are “used as a rebuttable presumption in …adjusting support obligations in the state.” In short, the Court found that “each state ultimately must afford a requesting party the opportunity to seek adjustment of the child support order in accordance with the guidelines. ”
In Tompkins v. Chamberlin, Boyd, the father, argued that another section of the law provides that this particular statute shall not “be deemed in any way to…expand…the rights of any party to file for modification of a child support order as is otherwise provided by law.” His point was that if it were not for this law, Linda, the mother, could not obtain additional support without proving a change of circumstances, and that an adjustment in accordance with the guidelines effectively expanded her rights.
The Court of Appeals held that the plain language of the statute required the court to either issue a new order based on the guidelines or to make no adjustment at all.
The Court also held that the statute did not expand the right to modification, which could occur at any time based upon an unforeseen change in circumstances, because review and adjustment under this law is separate and distinct from such modification, and can only occur when there has been a 10% change in the consumer price index.
The Court also concluded that the Father’s argument that this law violates the contract clause of the Federal Constitution was of no help to him because the state has a right to ensure that children receive adequate support.
DEVIATION FROM THE GUIDLINES
Although the issue was not specifically before the court, in her opinion Judge Ciparick also dealt with a couple’s right to an agreement that deviates from the guidelines. Couples who deviate from the guidelines might be “concerned that the statutory review and adjustment procedures not eviscerate the purpose of these agreements, including the desire for certainty over time. While the review and adjustment procedures apply equally to orders based on an agreement and those based solely on the child support standards, parties to an agreement that deviated from the guidelines may demonstrate why, in light of the agreement, it would be unjust or inappropriate to apply the guideline amounts….The statute now also indicates that the agreement must reflect that the parties were advised of the CSSA and that the amount of support calculated using its provisions is presumptively correct…. In addition…the agreement must state that amount and the reasons for the deviation….The review and adjustment procedures specifically contemplate that a court reviewing an objection may consider the provisions of an existing agreement or stipulation in determining whether the amount calculated under the standards would be unjust or inappropriate ….Parties are encouraged to advance such arguments to the court during the objection process.” [Emphasis added]
The Chamberlin agreement, however, was signed before there was any requirement for detailing the reasons for a deviation and that was certainly one factor in the Court of Appeals upholding the use of the guideline amount for the new child support order.
NEW AGREEMENTS
The result of this decision is that mediators must be as clear about deviating from the statutory adjustment process as they are about deviating from the basic guidelines themselves. The exact course of action in any particular case must be governed by the parties themselves. But the technical nature of the issues involved requires that mediators carefully explain what it would mean to totally ignore the issue of cost of living adjustments, as well as clarifying the options for future adjustments of child support.
In my experience there are limited options available:
- Adjust child support in accordance with the guidelines (based upon income) every year, two years, three years, etc.
- Adjust child support in accordance with increases in the consumer price index every year, two years, three years, etc.
- Provide for specific dollar or percentage increases in the child support every year, two years, three years, etc.
- Combine 1, 2 or 3 in a particular fashion that is acceptable to the couple.
- Provide for no increases during the life of the agreement, a possibility when all of the children are already teen-agers, or when the child support is agreed upon for a specified time, after which it is renegotiated.
SAMPLE CLAUSE
In a case which I had negotiated before Chamberlin was decided, the parties had agreed that there would be no reduction in child support as each child is emancipated. The effect was to build in increases in child support by not reducing child support when each child is emancipated. When I read the Chamberlin decision I decided to add a clause spelling out the party’s waiver of rights. That clause is printed below for your consideration.
SAMPLE CLAUSE | ARTICLE 12 – CHILD SUPPORT ADJUSTMENTS
The parties hereby agree to waive any right to any cost of living adjustments based on the consumer price index or any other method that might now or in the future be used to determine modification of the child support payments provided for in this agreement. The amount of child support provided for in this agreement has been fully negotiated between the parties. As a result, the parties are hereby waiving their rights under Domestic Relations Law §240-c with the intention to be bound by the content of this agreement.
The parties understand that in the decision in Tompkins v. Chamberlin, 99 N.Y.2d 328, 756 N.Y.S.2d 115 (February 13, 2003), the New York State Court of Appeals determined that the parties must demonstrate why they are deviating from the CSSA provisions for Review and Cost of Living Adjustment of Child Support Orders and that they are knowingly waiving the right to future modification of child support through such judicial review and adjustment, except pursuant to the terms of this Separation Agreement, and as a result, preclude any right to review and adjustment of child support under any provisions of the New York State Domestic Relations Law or other statute then prevailing.
The parties are consciously deviating from the Child Support Standards Act provisions for Review and Cost of Living Adjustment of Child Support Orders, and are here stating why, in light of this agreement, it would be unjust and inappropriate to apply any CSSA guideline amount to cost of living adjustments in the future.
This waiver of rights is based upon the provision herein for [spell out the reason, such as: for no reductions of child support upon the emancipation of the first two children.]