[JDFL]

I need to know if anyone out there knows of a case in New York State Appellate Division, 4th Department or New York State Court of Appeals where the Father “won” a child support in arrears case. I am aware that you need to know the specifics, so here they are. A friend of mine has a child, 14 years old. His ex (never married) took him to court stating that he owed her over $18,000.00 and only paid $2,500.00. He has shown all of his documentation, cancelled checks, and hand written receipts to the court. After giving all of his documentation to his ex, (she had nothing – was not asked to show how she came up with her numbers) what the court told him to do, they still had to go page by page with her. Now she agrees with these payments. BUT – this is where the problem comes in. Back in Dec. 2005, my friend helped his ex move into a house, He helped paint the inside it and actually moved their stuff into the house. He borrowed his ex’s van and unfortunately, got into an accident with it. (My friend no longer lives in NY, he lives out of state.) He received a van from his sister as a gift. For Christmas 2005. D/T the unfortunate accident, he decided to help his ex. The value of her van was approx $1,000.00. The value of the new van is approx $4,500.00. My friend and his ex had a verbal agreement, he would have his sister drive the van to NY to his ex. The verbal agreement stated that the current van is worth $4,500, less the $1,000 the value of the old van, less $2,500 towards child support arrears - (bringing him current.) (he was in arrears D/T a bad car accident he was in) less $1,000 as a gift for having the accident with her (the ex’s) van. He did speak to an Attorney in his state that told him a verbal agreement is OK and she did accept the van. My friend also wrote up the agreement, but – surprise - his ex never signed and returned it to him. (that is why he checked with an attorney first) In January 2006, his sister drove the van over 1500 miles, he could not expect his sister to drive it back. She was doing him a favor at the time, and he had the agreement. Being that they are in two different states, and he has a witness, he did speak to an attorney, his ex did receive the van and drove if for 2 years, received a $2200.00 trade in value, he did do what he believed at the time to be correct and fair, he is now being told that she did not sign a piece of paper and might not be allowed to come off the child support as verbally agreed between her and him-it may be considered a "gift". The major problem that we are finding out is that Fathers are not told what they can and can’t do. We have looked on line and it really does not state that they can not make agreements like that. He understands that you can not take “gifts” off child support (Christmas. Birthday etc) He understands that he can not pay utility bills for his ex and take that off child support. Being that his original court date was back in 2000, things have changed. He has never taken anything else off support; he has signed receipts and proof of everything except this agreement is not signed. His major problem is that if they deny this vehicle, not only will he owe $2500 more on his support, he will be out the money he could have gotten for the van if he would have sold it out right, he will have to re-pay his ex all that money (she also received $2200 at the trade in remember) plus interest. This will go on his credit report and also the chance of his license being taken away when he thought he was doing the right thing. He has already shown the lack of credibility in his ex in court. “everything” she has accused him of he has documentation showing her to be wrong. This has to mean something. We need a similar case in NY where the Father won. Anything that anyone can do would be greatly appreciated. He has to go back to court in less than 2 weeks. If we can find "one" similar case in NY we have a chance. He has done everything else correct.. Thanks!

[JudyKayTee]

I don't mean to be disrespectful but if you want accurate advice and a citation you need to boil this down. It is impossible to read and sort through it.

I gather - and I could be wrong - that he gave his ex a vehicle in lieu of child support and she now denies it?

In NY - and I am in NY - if this is your question only CASH is accepted as child support. NY does not follow a "let's make a deal" concept. There is an old post to this effect. The "ex" was advised to give the person the money ordered by the Court and allow that person to purchase the van herself instead of bargaining and making side arrangements.

A WRITTEN CONTRACT/ORDER CAN ONLY BE CHANGED (MODIFIED) BY ANOTHER WRITTEN CONTRACT/ORDER AND THAT DID NOT HAPPEN HERE. You cannot make side agreements to circumvent the Court.

But, again, I had difficulty sorting through the details.

[helperworkerbee]

Verbal agreements are never binding no matter what state either of them live in. Each State has specific guidelines for child support that can be looked up on line. Child support is based on your income and the number of children. I'm sorry but there may be nothing he can do about this. His attorney should have been able to answer this for him.

[JudyKayTee]

Verbal agreements are never binding no matter what state either of them live in. Each State has specific guidelines for child support that can be looked up on line. Child support is based on your income and the number of children. I'm sorry but there may be nothing he can do about this. His attorney should have been able to answer this for him.

I'm sorry to disagree but verbal agreements ARE binding - they just aren't binding if they change a Court Order. Child support isn't based on one person's income and the number of children. In many States it's based on any number of factors including income of both parties, custodial and non-custodial.

Two parents can make a verbal agreement and they will be fine unless and until one of them becomes unhappy and then the Court action begins. I would be much less concerned if this verbal agreement were not in addition to an Order.

As far as his Attorney being able to answer, that's why this site is here. "We" give information and advice based on education, experience, research.

If you have information contrary to what I have posted, please post it. I'm always happy to learn something.

I have a very uncomfortable feeling that you have been on the board before. Have you changed user names?

[JDFL]

Sorry for the original being so long - just a very drawn out mess. My boyfriend transferred the vehicle to his ex as part of a verbal agreement with her. He lives in Fl and she is in NY. He also wrote up an agreement and has a witness, he spoke to an Attorney in FL stating a verbal agreement is OK. He is now in court by his ex stating that he NEVER paid child support. Regardless he has proof of everything, she has been caught in lies after lies - even lying to the magistrate. Yes, there has been times when a verbal agreement has been allowed, I have found cases regarding this - just not a child support case. There is a chance with his testomony, witness and his ex discrediting herself, this might go his way. He has every receipt since child support was orderd and every piece of documentation regarding other issues. He is not trying to pull a fast one - or not pay his support. He does not have an issue at all. He is more concerned that if this is denied he will have to pay again the $2500 - with interest - they can take his license - and this will go on his credit report. He originally got behind d/t a bad car accident. He is not the "dead beat" Dad - he could have went and had it lowered etc - but he didn't because it is for his daughter and now this is the Thanks he gets. If we can find one documented case - or similar case - this will definitely help him. I have been looking at so many different court cases my eyes are crossed. Thanks for anything that you can tell me. One last thing, I am aware in NY that you are not supposed to "make deals" etc - (I am a single Mother who does not get support on a timely basis - BUT I believe you can't buy time) Anyway - Being that this court order was over 9 years ago, there is no documentation given to either parents in the court room of what you can and can't do. It is terrible that the Fathers that think they are doing the right thing get screwed because they are not left an instruction book.

[JDFL]

Verbal agreements are never binding no matter what state either of them live in. Each State has specific guidelines for child support that can be looked up on line. Child support is based on your income and the number of children. I'm sorry but there may be nothing he can do about this. His attorney should have been able to answer this for him.

Thanks for your answer, Child support is different by state. I lived in NY and I know what the guidelines are there and in FL they are different. It is not just based on your income - there are times when you can not follow the guidelines, this has to be done in court and agreed by both parties. Just a sad situation that my boyfriend (I was not with him at the time this agreement was made) It was hard being in two different states and trying to do the right thing. His ex lied about receiving the checks, anout medical bills, about medical coverage and he has proof to all of that. He also has receipts of what he has purchased for his child - over $600 on school clothes - which he did not even think to take off child support or even mentioned it in court. He did that because he wanted to. He pays for his child's airfare and all expenses when she comes to visit him, actually - he could fight that in court and that could be settled in a different way. Why? As long as he can see his child - which that is another story.

[JDFL]

[QUOTE=JudyKayTee;1942865]
As far as his Attorney being able to answer, that's why this site is here. "We" give information and advice based on education, experience, research.

QUOTE]

Thank you for your advice - I am just trying to see if anyone knows of a case or even something similar that we can use as documentation. Something like this with so much documentation, he has had to go back to court 3 times and go through 9 years of cancelled checks - page, by page with the ex to see if she "agrees" with the documentation. Not once was she asked how she came up with her numbers or how she can state he has never paid. He did do things right - he paid by check and wrote Child Support on them and when he gave her cash he did have"her" write a receipt. This is the only thing over 9+ years that he has to fight about.. we are keeping our fingers crossed that he did "try" to do the right thing, and she agreed to it and kept the van for two years. We are aware that they could state the van as a "gift" - with the written agreement and witnesses we are hoping that will help. If you have any advice on where I could look
For a case - PLEASE PLEASE let me know - Thanks again.

[JudyKayTee]

I cannot find a case which supports your argument - and I do all my research on line.

Your problem is a verbal arrangement when there was already a written Order - but I realize that you know that.

I wish I had great, helpful advice for you... but I do not. This is another case where it appears that the good guy gets smacked around by the coniving bad guy.

[JDFL]

I cannot find a case which supports your argument - and I do all my research on line.

Your problem is a verbal arrangement when there was already a written Order - but I realize that you know that.

I wish I had great, helpful advice for you ... but I do not. This is another case where it appears that the good guy gets smacked around by the coniving bad guy.

Now I know that this is long and crazy - BUT there needs to be a difference between a "modification" and a "waiver' - I am working on this right now - and I also found another case that is almost identicle to what my boyfriend is going through except the Mother received savings bonds, not a van. Dhe states that she did receive the savings bonds BUT did not agree they were for support - they ruled in the Fathers favor - BUT the date I believe is prior to the court changing the ruling. Still looking - I sent the below because you know how to read it... thanks again for all of your help. :)

Also unpersuasive is the mother's argument that the express waiver given in this case must be deemed invalid as a matter of *1017 law due to the parties' failure to comply with Family Ct Act § 413 (1) (h). The mother is correct that in the absence of an express waiver, a party seeking modification of a child support obligation is required to apply to the courts (see Galotti v Galotti, 251 AD2d 285, 285-286 [1998]) and any order entered in such a proceeding must comply with the Child Support Standards Act (see Matter of McColl v McColl, 6 AD3d 794, 795 [2004]). In arguing that the parties' out-of-court agreement must also comply with the statutory requirements, however, the mother fails to distinguish between a modification agreement and a waiver. “A modification agreement ‘is binding according to its terms and may only be withdrawn by agreement’ [while a] waiver.. . ‘requires no more than the voluntary and intentional abandonment of a known right’ ” and, to the extent that it remains executory, may be withdrawn without agreement (Matter of O'Connor v Curcio, supra at 102, quoting Nassau Trust Co. v Montrose Concrete Prods. Corp. 56 NY2d 175, 184 [1982]). Thus, “[a]n agreement [that] does not satisfy the prerequisites of a legally binding modification agreement may nonetheless constitute a valid waiver” (Matter of O'Connor v Curcio, supra at 103; but see Sheridan v Sheridan, 174 Misc 2d 249, 253 [1997]). Indeed, even oral waivers-which cannot comport with the requirements of Family Ct Act § 413 (1) (h)-have been deemed acceptable (see Matter of Parker v Parker, 305 AD2d 1077, 1078-1079 [2003], supra; Parmigiani v Parmigiani, **3 250 AD2d 744, 745 [1998]; see also Matter of Grant v Grant, 265 AD2d 19, 21-23 [2000], supra).