CHILD SUPPORT - DISABLED CHILD TO 26

Back in November 2021, i wrote about a new amendment to the DRL regarding child support when a child is disabled (A Lawyer's Blog - Jon Michael Probstein, Esq.: SUPPORT FOR DISABLED CHILD TO 26 (jmpattorney.blogspot.com)). This is a case reporting on that amendment.

Pettway v. Pettway, Date filed: 2022-08-05, Court: Supreme Court, Queens, Judge: Court Attorney Referee Maria L. Bradley, Case Number: 700367/2022:

"On the foregoing papers, is ordered that the applications are determined as set forth herein: Initially, Mot. Seq. #2, whereby defendant seeks an order of contempt is denied in its entirety. This matter was first conferenced by your undersigned on May 13, 20221, whereby defendant’s counsel did not appear due to the allegedly mistaken belief that the matter had been settled. A second conference was scheduled for May 23, 2022, whereby defendant’s counsel again failed to appear. At a third conference, held on June 2, 2022, defendant was represented by one Noel O’Brien, Esq., who advised the court that he received the file “5 minutes” before the appearance and knew nothing about the case. Mr. O’Brien was nevertheless advised that financial documents long requested by plaintiff were to be produced by defendant by a final appearance to be held on June 9, 2022. Mr. O’Brien was further strongly advised that all relief sought by plaintiff would be granted upon the failure of the defendant to provide said financial records or of counsel to appear. Mr. O’Brien did represent that a stipulation resolving both motions would be transmitted to plaintiff’s counsel before the final date of June 9, 2022. At the final appearance of June 9, 2022, defendant was represented by Kystal Paulino, Esq., the attorney of record. However, defendant had failed to provide the requested financial information, and in addition, the “stipulation” drafted by defendant’s counsel and transmitted to plaintiff’s counsel was insufficient due to its complete failure to comply with the requirements of the Child Support Standards Act. The stipulation was not executed. Based upon the repeated failures of defendant counsel to appear, or to be prepared, and defendant’s repeated failure to provide financial records, defendant’s counsel was informed on June 9, 2022, that the defendant’s motion was denied and that the plaintiff’s motion would be deemed submitted without opposition. Plaintiff’s counsel appeared on each court date Turning to plaintiff’s motion, she requests that child support be extended and that the buy-out of defendant’s interest the marital residence as directed on the original Judgment of Divorce, dated March 15, 2017, be delayed. The parties’ Judgment of Divorce incorporated a stipulation dated October 18, 2016, which addressed both child support and the distribution of the marital residence. Both the Judgment and the stipulation included support provisions until the youngest child attained the age of 21 years. However, in support of her motion, plaintiff submits her own affirmation and medical evidence that the two of the three children of the marriage, Da-Liyah, born December 5, 1999, and David, born June 20, 2001, each have significant medical impairments. Plaintiff’s medical evidence was uncontroverted that Da-Liyah has Bi¬polar Disorder, and that David is diagnosed with Autism.

By Order of the Surrogates Court of Queens County, dated June 3, 2021, Letters of Guardianship were granted appointing plaintiff as the Legal Guardian of David. Plaintiff also submits the report of Fred Louis Savino, M.D., and Julian L. Brower, Ed.D., L.M.H.C., setting forth the extent of David’s disabilities. David was found to have a full-scale IQ of 46, at the age equivalent of 5 years and 5 months. Plaintiff also submits the report of a licensed therapist, Chevon Roberts, L.C.S.W., dated November 4, 2021, that Da-Liyah has been diagnosed with Bi-polar Disorder, Depressed type, whereby she is on medication and in continued psychotherapy. Plaintiff avers that she must continuously monitor Da-Liyah to take her medication. Accordingly, the medical evidence establishes that both Da-Liyah’s and David’s impairments are of a continuous nature that would impair their ability to function in society (see, Mental Hygiene Law §1.03 [22]).

In light of the foregoing, plaintiff seeks and extension of, and an increase in, child support until David attains 26 years of age. The Judgment of Divorce directed child support in the amount of $397 per week in accordance with an order of the Queens Family Court, dated June 19, 2013 (Docket No. F-03078-13). As plaintiff correctly argues, a court may modify child support without a demonstration of a substantial change in circumstances where three years have elapsed since the order was entered and/or where either party’s gross income has increased by more that 15 percent. (DRL 236B[9][b]; Fam Ct. Act §451). Here, inasmuch as three years have elapsed since both the Family Court Order and the Judgment of Divorce were issued, and plaintiff avers that both parties’ incomes have increased by more than 15 percent, an increase is warranted. Moreover, pursuant to Domestic Relations Law 240-d and Family Court Act §413-b, a party may petition the court for the support of a disabled adult child until the that child attains the age of twenty-six years. Accordingly, defendant shall pay child support for the parties’ two disabled children until the younger child, David, attains the age of 26 years.

The amount of child support shall be calculated for two children in that the third child, Daniel, born June 20, 2001, has attained the age of 21 years. Any claimed add-on expenses shall be paid as originally set forth in the order of the Family Court inasmuch as the parties’ stipulation of settlement is silent on this issue.

Given that defendant persistently refused to provide his most recent financial information, child support shall be calculated based upon the last known financial information of defendant, and plaintiff shall have leave to make application for a modification thereof upon obtaining more current information.

With regard to the branch of the application seeking an extension of the time of the buy-out of defendant’s interest the former marital residence, plaintiff has established the need for such relief. Plaintiff avers that the children have lived in the home for the entirety of their lives. Due to David’s disability, including David’s attempts to escape the home, plaintiff has equipped the house with special locks, video cameras and voice activation devices as safety measures. Exclusive occupancy of the marital residence may properly be granted when the home is both necessary and specially adapted for a child with special needs (see Marino v. Marino, 183 AD3d 813 [2nd Dept 2020]; Daniels v. Daniels, 202 AD2d 862 [3rd Dept 1994]). This branch of the motion, also having been deemed unopposed, is accordingly granted and defendant’s right to buy-out his equity interest in the former marital residence shall be delayed until David attains the age of 26 years.

Based upon the foregoing, plaintiff is directed to prepare an Amended Judgment of Divorce and Amended Findings of Fact, settled upon notice, as well as a current child support worksheet, to be submitted to directly to your undersigned via filing in the NYSCEF system within 45 days from the date of this Order with Notice of Entry. Plaintiff’s counsel must email your undersigned to confirm that the documents have been so submitted.

SETTLE ORDER ON NOTICE

Dated: August 5, 2022

Footnotes

1. This matter was originally assigned to Court Attorney-Referee Elizabeth Yablon on or about February 25, 2022, following which, she retired from the Court system, on April 14, 2022. The matter was re-assigned on May 2, 2022. Your undersigned was advised by plaintiff's counsel that the matter was conferenced at least once before Referee Yablon."