Extracurricular Activities Remain on the Chopping Block in Divorce
A paradox seems self-evident lately between (a) the state of New York’s admirable efforts to prioritize alternative dispute resolution (ADR) as a means to reduce litigation in our courts, versus (b) decisional law in New York that (i) calls into question basic tenets of matrimonial practice that have been accepted by practitioners for years on end, and (ii) keeps open the door to more litigation.
That paradox is perhaps best illustrated as follows: The Administrative Board of the Courts in New York is seeking public comments on a proposal to adopt new rules that would establish presumptive ADR in “all civil disputes.” While there are various opt-outs to presumptive ADR that are noted in the Memorandum that seeks public comments on the proposal, it is no doubt an attempt to find a way to reduce the existing burden on the court system that derives from unrelenting litigation.
Compare the proposal from the Administrative Board with the Second Department’s recent decision in Tuchman v. Tuchman, 2022 NY Slip Op 00454.
In Tuchman, the trial court (Westchester County) directed the defendant-husband to pay his pro rata share of the costs of extracurricular activities of the parties’ youngest child, including summer camp.
The Second Department’s response: Not so fast. It is worth reproducing the entirety of the Second Department’s justification for reversing course on what I suspect many, if not all matrimonial practitioners, understand to be a given when it comes to payment of extracurricular activities:
Although such expenses may be appropriately considered as an “add on expense” for child care … the plaintiff failed to establish an entitlement to child care expenses …
Although the defendant acknowledged that it was in the child’s best interest to attend summer camp, and, during the marriage, all of the parties’ children attended summer camp, the child’s standard of living during the marriage was taken into account in awarding basic child support using the defendant’s income in excess of the statutory cap. Expenses for extracurricular activities are not specifically delineated as an ‘add-on’ under the Child Support Standards Act …
The substantial basic child support award should be sufficient to cover the child’s expenses, including her extracurricular activities (emphasis added).
The Child Support Standards Act (CSSA) does not identify “extracurricular activities” as an obligatory expense of either parent. This was addressed in a prior decision of the Appellate Division, First Department, Michael J.D. v. Carolina E.P., 2016 NY Slip OP 01252, wherein Justice Gische’s decision modified the trial court’s order directing payment of extracurricular and summer activities. In that decision, Justice Gische explained that the trial court did not explain any basis to deviate from the CSSA—which does not “expressly” enumerate extracurricular activities as an add-on expense—when fashioning its order on payment of activity related expenses.
There are various add-on expenses that are unrelated to “child care.” There are extracurricular activities, summer organized activities (e.g., summer camp), unreimbursed medical, dental and therapeutic expenses, not to mention educational and education related expenses.
In the context of custody determinations in New York, the best interest of the child is paramount. Based on Tuchman, when courts consider whether or not a parent has an obligation to contribute to an expense that is outside the four corners of the CSSA, form over substance may control notwithstanding what is undisputedly in a child’s best interest. The Tuchman decision indicates that perhaps there was a basis for a deviation from the CSSA—for example, the parties’ children all attended summer camp, and the defendant-husband admitted it was in the child’s best interest to attend summer camp. This author struggles to understand from the decision in Tuchman why there was not a means to “articulate the basis for [a] deviation” from the CSSA, to use Justice Gische’s words from the above-mentioned 2016 decision.
The bigger concern this author has with Tuchman is whether or not it will open the floodgates to the argument that direct basic child support payments (intended for food, clothing and shelter) are somehow sufficient—as a matter of course—to cover add-on expenses as a whole. That could be a dangerous precedent.
The fact of the matter is that while not enumerated, almost all practitioners and trial courts consider extracurricular activities to be an “add on” for trial and negotiation purposes. Against that backdrop, New York seems to be on the precipice of making a choice when it comes to its divorce laws: fostering conflict resolution, or fostering conflict escalation. New York can’t have it both ways. Choose one, and choose wisely.
“Extracurricular Activities Remain on the Chopping Block in Divorce,” by Alan R. Feigenbaum was published in the New York Law Journal on April 25, 2022. Reprinted with permission.