Whelan v Whelan
Attorneys and Parties
Brief Summary
Family law—child support modification and the enforceability of a contractual waiver in the face of pandemic-related income loss.
Without a hearing, the Supreme Court, Kings County reduced the plaintiff’s child support from $6,250 per month to $3,500 per month.
The Appellate Division reversed the order and denied the plaintiff’s motion for a downward modification.
The plaintiff failed to show a substantial change in circumstances; his net worth showed sufficient means to continue paying the stipulated support despite COVID-19-related income loss. Additionally, the parties had expressly waived modification based on an involuntary 15% or greater change in income under Domestic Relations Law § 236(B)(9)(b) [permits modification of support upon a substantial change in circumstances] and Family Court Act § 451 [authorizes courts to modify child support orders].
Background
The parties married in 2006 and have two children. In December 2015, they executed a stipulation of settlement setting child support at $6,250 per month and waiving any right to seek modification based on an involuntary income change of 15% or more pursuant to Domestic Relations Law § 236(B)(9)(b) [permits modification of support upon a substantial change in circumstances] and Family Court Act § 451 [authorizes courts to modify child support orders]. The July 11, 2016 judgment of divorce incorporated but did not merge the stipulation. In July 2020, citing COVID-19-related income loss, the plaintiff sought to reduce support to $1,604.17 per month.
Lower Court Decision
By order dated September 29, 2020, the Supreme Court, Kings County (Ciccotto, J.), without a hearing, granted a downward modification to the extent of reducing child support to $3,500 per month.
Appellate Division Reversal
Reversed on the law, with costs; the motion for downward modification was denied. The court held the plaintiff did not demonstrate a substantial change in circumstances because his statement of net worth showed sufficient means to meet the agreed support, and the parties’ stipulation waived modification based on a 15% involuntary income change.
Legal Significance
Confirms that in New York, downward modification of child support requires proof of a substantial change in circumstances measured against the party’s ability to pay, not merely current income levels. Contractual waivers of specific statutory modification triggers are enforceable, and temporary pandemic-related income reductions, without more, do not warrant modification where resources are sufficient.
A payor seeking reduced child support must show an inability to pay, not just reduced income, and stipulated waivers of modification based on income changes will be honored absent compelling proof overriding the parties’ agreement.