Shzu v. Marrelli
Attorneys and Parties
Brief Summary
Family law (child support modification, add-on expenses, counsel fees)
Modified defendant’s pro rata share of children’s add-on expenses effective June 1, 2022; denied modification of basic child support; awarded plaintiff $12,000 in counsel fees.
The Appellate Division made the add-on expense modification retroactive to November 23, 2021 (the motion date), reversed the denial of child support modification, and vacated the counsel-fee award, remitting for new determinations.
Plaintiff conceded her income increased by more than 15% since the divorce, triggering a new determination of basic child support under Domestic Relations Law § 236(B)(9)(b)(2)(ii)(B) [permits modification when either party’s gross income has changed by 15% or more since the order]; modification of support-related obligations is retroactive to the application date under Domestic Relations Law § 236(B)(7)(a) [modifications are effective as of the date of the application]. The notice of appeal issue was cured under CPLR 5520(c) [permits treating a premature notice of appeal as valid].
Background
The parties married in 2011 and have two children. In March 2020 they executed a child support stipulation, incorporated but not merged into an October 1, 2020 divorce judgment, requiring defendant to pay $2,868 per month in basic child support and 95% of the children’s add-on expenses. On November 23, 2021, defendant moved to modify both his basic child support and his pro rata share of add-on expenses based on a substantial change in circumstances and because plaintiff’s income had increased by more than 15% since the judgment. Plaintiff conceded her income increased by more than 15% and that defendant’s add-on pro rata share should be modified, and she cross-moved for counsel fees.
Lower Court Decision
The Supreme Court, Kings County, modified defendant’s pro rata share of add-on expenses effective June 1, 2022; denied modification of basic child support after finding defendant’s income submissions lacked credibility; and granted plaintiff’s cross-motion for $12,000 in counsel fees, later reduced to a money judgment.
Appellate Division Reversal
The court deemed the notice of appeal from the fee portion of the order to be a premature notice of appeal from the money judgment under CPLR 5520(c) [permits treating a premature notice of appeal as valid]. It reversed insofar as appealed from, holding that plaintiff’s conceded 15%+ income increase warranted a new determination of basic child support under Domestic Relations Law § 236(B)(9)(b)(2)(ii)(B) [permits modification when either party’s gross income has changed by 15% or more since the order], irrespective of the court’s concerns about defendant’s income credibility. It further held the add-on expense modification must be effective as of November 23, 2021—the motion date—under Domestic Relations Law § 236(B)(7)(a) [modifications are effective as of the date of the application], and remitted for calculation of any credit for add-on expenses actually paid between November 23, 2021, and June 1, 2022. The fee award was vacated and remitted for a new determination in light of the changed outcome.
Legal Significance
Confirms that a 15% or more change in a party’s income compels a new child support determination under Domestic Relations Law § 236(B)(9)(b)(2)(ii)(B) regardless of the movant’s income credibility issues, and that modifications to support-related obligations are retroactive to the filing date under Domestic Relations Law § 236(B)(7)(a). Also underscores that counsel-fee awards may need reconsideration when the underlying support determinations are altered.
When one parent’s income increases by at least 15% since the prior order, the court must revisit basic child support; adjustments to pro rata add-on expenses are retroactive to the motion date; credibility concerns about the movant’s income do not negate the statutory trigger, though they may affect the ultimate calculation.