Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

In re Heintzman

Supreme Court of New York, Second Department

January 10, 2018

In the Matter of Douglas G. Heintzman, respondent,
v.
Jennifer C. Heintzman, appellant. (Appeal No. 1) In the Matter of Douglas G. Heintzman, respondent-appellant,
v.
Jennifer C. Heintzman, appellant-respondent. (Appeal No. 2) Docket Nos. F-14662-13, F-16417-13

          Annette G. Hasapidis, South Salem, NY, for appellant in Appeal No. 1 and appellant-respondent in Appeal No. 2.

          Douglas Heintzman, Toronto, Ontario, Canada, respondent pro se in Appeal No. 1 and respondent-appellant pro se in Appeal No. 2.

          WILLIAM F. MASTRO, J.P., SHERI S. ROMAN, SANDRA L. SGROI, JEFFREY A. COHEN, JJ.

          DECISION & ORDER

         Appeal from an order of the Family Court, Westchester County (Arlene E. Katz, J.), dated March 25, 2016, and appeal and cross appeal from an order of that court dated June 30, 2016. The order dated March 25, 2016, denied the mother's objections to so much of an order of that court (Michele Reed Bowman, S.M.), dated September 21, 2015, as directed the parties to provide information concerning certain tuition and room and board expenses and directed the mother to produce a copy of her income tax return for the year 2012. The order dated June 30, 2016, insofar as appealed from, denied the mother's objections to (1) stated portions of an order of that court (Michele Reed Bowman, S.M.), dated March 7, 2016, which, inter alia, after a hearing, awarded her child support arrears only for the period between August 2013 and August 2014 and imputed income to her in the sum of $152, 000 for the year 2014, and (2) so much of an order of that court (Michele Reed Bowman, S.M.), dated March 18, 2016, as dismissed, without prejudice, her petition alleging a violation of a prior order of support, granted the father's petition for a downward modification of his child support obligation, and directed the father to pay the sum of only $871 per month in child support for the parties' unemancipated child. The order dated June 30, 2016, insofar as cross-appealed from, denied the father's objections to (1) stated portions of the order dated March 7, 2016, which, inter alia, after a hearing, assessed the father's child support obligation at the sum of $4, 791 per month for the period between August 2013 and October 2013 and at the sum of $4, 743 per month for the period between November 2013 and August 2014, and directed the entry of a money judgment against the father in the principal sum of $20, 243.81, (2) a second order of that court (Michele Reed Bowman, S.M.), also dated March 7, 2016, which granted the mother's motion for an award of counsel fees and directed the father to pay counsel fees in the sum of $5, 700, and (3) so much of the order dated March 18, 2016, as recalculated his child support obligation effective April 16, 2015.

         ORDERED that the order dated March 25, 2016, is affirmed, without costs or disbursements; and it is further, ORDERED that the order dated June 30, 2016, is modified, on the law and in the exercise of discretion, (1) by deleting the provision thereof denying the mother's objection to so much of the first order dated March 7, 2016, as imputed income to her in the sum of $152, 000 for the year 2014, and substituting therefor a provision granting that objection and vacating that portion of the first order dated March 7, 2016, (2) by deleting the provision thereof denying the mother's objection to so much of the order dated March 18, 2016, as directed the father to pay the sum of $871 per month in child support for the parties' unemancipated child, and substituting therefor a provision granting that objection and vacating that portion of the order dated March 18, 2016, and remitting the matter to the Support Magistrate for a new determination of the father's child support obligation with respect to the parties' unemancipated child, (3) by deleting the provision thereof denying the father's objections to so much of the first order dated March 7, 2016, as assessed his child support obligation at the sum of $4, 791 per month for the period between August 2013 and October 2013 and at the sum of $4, 743 per month for the period between November 2013 and August 2014, and directed the entry of a money judgment against the father in the principal sum of $20, 243.81, and substituting therefor a provision granting those objections and vacating those portions of the first order dated March 7, 2016, and (4) by deleting the provision thereof denying the father's objection to the second order dated March 7, 2016, and substituting therefor a provision granting that objection and vacating the second order dated March 7, 2016, and thereupon denying the mother's motion for an award of counsel fees; as so modified, the order dated June 30, 2016, is affirmed insofar as appealed and cross-appealed from, without costs or disbursements, and the matter is remitted to the Family Court, Westchester County, for a new determination of the parties' respective incomes for the years 2012, 2013, and 2014, and their proportionate shares of college education expenses, a new determination concerning the average costs of tuition and room and board at SUNY Albany and SUNY Binghamton for the school years 2013-2014, 2014-2015, and 2015-2016, and a recalculation of the father's child support obligation and the amount of child support arrears owed for the period between August 2013 and August 2014.

         The parties were married in August 1989, and have three children together. In October 2004, the parties entered into a separation agreement, which was incorporated but not merged into their subsequent judgment of divorce. The separation agreement provided, in relevant part, that "[c]hild support shall be recalculated pursuant to the CSSA" upon the occurrence of an emancipation event, which included "a child attaining the age of 21 years, or, in the event that a child is attending college or other accredited institute of higher learning on a full time basis, until the earlier happening of the child's graduation or attaining the age of 22 years." Pursuant to the separation agreement, the parties agreed that they would each pay their proportionate share of "each child's college education expenses, based upon the proportion of the respective incomes of the parties established in the calendar year preceding each child's commencing college studies." They agreed that neither party would be required to contribute more than "his or her proportionate share of the average cost of tuition, room and board, and books" at SUNY Albany and SUNY Binghamton. The parties also agreed that the father was entitled to a credit toward his basic child support obligation in an amount equal to "the amount of room and board expenses paid by the [father] for the child residing at college, " capped at a fractional amount "of the then child support."

         In May 2010, an order of support was entered in the Supreme Court against the father upon the termination of his obligation to pay maintenance to the mother. The court applied the statutory percentage of 29% to parental income capped at $250, 000, resulting in an annual child support obligation of $72, 500. The court concluded that the father's pro rata share was 92%, or $66, 700, based on the parties' respective income for the year 2009, but mistakenly fixed the father's monthly child support at the sum of $5, 588 instead of the sum of $5, 558.

         In November 2013, the father filed a petition in the Family Court seeking a downward modification of his child support obligation on the ground, inter alia, that the parties' oldest child was emancipated. In December 2013, the mother filed an enforcement petition in the Family Court, alleging that the father owed the sum of $15, 235.36 in child support arrears. In January 2014, an interim order was entered by the Family Court, directing the father to pay child support in the sum of $4, 817 per month effective February 2014.

         In an order dated December 15, 2014, the Support Magistrate denied the mother's enforcement petition and granted the father's modification petition to the extent of reducing his child support obligation to the sum of $3, 258.33 per month for the period between November 7, 2013, and December 5, 2013, and to the sum of $2, 215.66 per month effective December 6, 2013, when the oldest child became emancipated. The Support Magistrate reasoned that, pursuant to the separation agreement, the father was entitled to a credit in an amount equal to 12/29ths of the basic child support obligation for the period between November 7, 2013, and December 5, 2013, when child support was payable for three children and two children were residing at college. The Support Magistrate further reasoned that as of December 6, 2013, the father was entitled to a credit in an amount equal to 8/25ths of his "new annual child support" obligation of $39, 100, since as of that date child support was payable for only two children and one was in college.

         Both parties filed objections to the Support Magistrate's order. In an order dated April 6, 2015, the Family Court denied the father's objections and granted the mother's objections to the extent of remitting the matter to the Support Magistrate "for a recalculation of the monthly support payments consistent with the determination herein, " and "for a determination on the merits" of the mother's enforcement petition. The court, after examining the relevant provisions of the separation agreement, determined that "[t]o properly calculate the changes to payments from the father to the mother as each child goes away to college and becomes emancipated, it is critical to first compute the average cost of room and board at SUNY Albany and SUNY Binghamton." It noted that under the separation agreement, the father "is permitted a credit in an amount up to the appropriate fractional portion of the direct support... however, this credit cannot be greater than the amount of the room and board actually paid by the father." The court stated that if there was insufficient evidence to determine "the proper room and board credit to apply, the issue must be [remitted] for a rehearing on that limited issue only."

         On April 16, 2015, the father filed a petition for a downward modification of his child support obligation on the ground, inter alia, that the parties' middle child was emancipated. In July 2015, the mother filed a violation petition alleging that the father failed to pay child support as ordered and that his violation was willful.

         By order dated September 21, 2015, the Support Magistrate directed the parties to provide information concerning, among other things, tuition and room and board expenses at SUNY Binghamton for the year 2013-2014, and tuition and room and board expenses at SUNY Albany for the years 2013-2014, 2014-2015, and 2015-2016. The Support Magistrate also directed the mother to provide a copy of her income tax return for the year 2012. The mother filed objections to the Support Magistrate's order, which were denied in an order of the Family Court dated March 25, 2016. The mother appeals from that order.

         Meanwhile, a hearing was held on October 5, 2015, at which the mother moved for an award of counsel fees. The parties agreed that the motion would be heard on papers and that no appearance was necessary. By order dated March 7, 2016 (hereinafter Order No. 1), the Support Magistrate directed that "pursuant to a Decision and Order... dated May 11, 2010, support is modified to $5, 558 per month, thereby correcting a computational error, " and "granted [the mother] a money judgment for $20, 243.81." The Support Magistrate calculated each party's income for the years 2012, 2013, and 2014, and their proportionate shares of college education expenses for the years 2013-2014, 2014-2015, and 2015-2016. In calculating the mother's income for the year 2014, the Support Magistrate imputed $152, 000 in income to the mother based on her exercise of certain stock options. The Support Magistrate also determined, based on documents that were purportedly submitted by the mother, that the average cost of tuition and room and board at SUNY Albany and SUNY Binghamton was $9, 799 for 2013-2014, $11, 890.35 for 2014-2015, and $15, 283.50 for 2015-2016. The Support Magistrate then granted the father's petition "based upon the emancipation of" the oldest child. The Support Magistrate noted that the mother did not dispute that after the oldest child began residing at college, the father was entitled to a credit of 4/29ths of his then child support obligation, thereby reducing his monthly child support obligation to the sum of $4, 791, and that the mother "consents to credit [the father] with $9, 790 in room and board payments in 2013-2014 for" the middle child, who began residing at college in August 2013. The Support Magistrate then assessed the father's child support obligation at the sum of $4, 791 per month for the period between August 2013 and October 2013, and at the sum of $4, 743 per month for the period between November 2013 and August 2014. The Support Magistrate explained that application of the $9, 790 credit related to room and board reduced the father's child support obligation to the sum of $4, 743 per month. She further found that "[b]ecause [the father] filed his modification petition on November 7, 2013, the adjustment to support is effective retroactive to the date of his petition." Both parties filed objections to Order No. 1.

         In another order dated March 7, 2016 (hereinafter Order No. 2), the Support Magistrate granted the mother's motion for an award of counsel fees and directed the father to pay the mother's attorney a fee in ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.