Ordinarily, proceedings to modify child support or related expenses are retroactive to the date of filing of the new application or petition. However, proceedings that argue that the court order or settlement agreement didn’t comply with the relevant requirements of the Child Support Standards Act are treated differently. Where the court finds, sometimes many years later, that an order or an agreement is non-compliant, it has to recalculate child support and related obligations retroactive to the original date of the order or agreement. Non-compliance can happen for a variety of reasons such as an invalid opt-out provision or a failure to include a proper acknowledgment clause.
In Martelloni v. Martelloni, the Appellate Division, Second Department, held that the trial court erred in failing to grant the wife’s motion for recalculation of unreimbursed medical and childcare costs retroactive to the parties’ stipulation of settlement date of January 12, 2012. The parties’ stipulation of settlement survived but was not merged into the divorce judgment.
In 2014 the wife commenced a plenary action to vacate and recalculate medical and childcare expenses retroactive to the date of the stipulation. In 2015 the court consolidated the wife’s plenary action with another post-judgment matrimonial proceeding and determined the stipulation provision pertaining to unreimbursed medical was invalid as it deviated from CSSA without an acknowledgment, and dismissed the wife’s plenary action due to consolidation. The wife then filed a motion to compel the husband to pay his pro-rata share of unreimbursed medical and childcare, retroactive to the 2012 stipulation date.
The Appellate Division held that the trial court improperly determined reimbursement of medical and childcare costs were retroactive only to the date of filing of the motion. It held that since the wife properly commenced a plenary action to vacate and recalculate the stipulation provision which action was consolidated, the court should have granted recalculation of arrears owed retroactive to the date of the parties’ stipulation of January 2012.
This determination is likely to create an unexpected financial obligation for the now ex-husband. The amount of it is likely to be significant since it had merited an appeal. In my practice as a child support attorney, I see a surprisingly high number of orders and agreements that for one reason or another do not comply with the Child Support Standards Act. Under appropriate circumstances, those situations represent an opportunity to undo a bad agreement or wrong court decision.