New Power of Attorney Forms for N.Y.

Commencing on March 1, 2009, New York will be using a new power of attorney form. The last form was revised in 1994. The new 2009 version contains numerous definitions and revisions. I do not have a link to the site yet, but will post one soon.

Fire District Has Standing...

In an unpublished decision, dated January 19, 2009, Judge Stephen Ferradino (Saratoga County, Supreme Court Justice) held that a fire district (a/k/a political subdivision) has standing to challenge a planning board decision.

This story actually starts about 2 years prior when the Town of Providence was drafting a local law that would require new subdivisions to install water points in order to account for the lack of proper water sources for use in fighting fires. The Providence Fire District was involved in the process of drafting the proposed law. In the end, the local law actually required the Planning Board to request an "advisory opinion" from the fire district on any "major subdivision" regarding the size of the water point needed for a proposed subdivision and that any required water point would be one that complied with NFPA 1142 (Standard on Water Supplies for Suburban and Rural Fire Fighting). Unfortunately, it appears that the Town's inclusion of an advisory opinion for the fire district may have been illusory.

Fast forward to 2008, and the first major subdivision is put before the Planning Board. The fire district provides its advisory opinion - the 10 (2-story) home subdivision requires a 20,000 gallon water point in order to provide an adequate water supply. The applicant sought its own expert that held a 7,500 gallon water point is sufficient. Both the fire district and the applicant's expert provided a different interpretation of the NFPA. The planning board decided to take the opinion of the applicant's expert over its own fire district.

The fire district felt so strongly about the need for a 20,000 gallon water point that it commenced an Article 78 proceeding against both the planning board and the applicant. During the conference with the Judge, many questions were posed to the petitioner regarding why the fire district should be granted standing. It seemed like a daunting hurdle. No cases on point were found.

However, in the Providence Fire District v. Providence Planning Board (Sup. Ct., Saratoga Co. 2009) decision, Judge Stephen Ferradino found that the fire district had standing to challenge decisions pertaining to the water point. Judge Ferradino found that the fire district's concerns were unique from the general public. Society of Plastics Indus. v. County of Suffolk, 77 N.Y.2d 761 (1991). The fire district was uniquely concerned about the safety of its fire fighters in the face of an inadequate water supply supply.

While the fire district lost its petition on the merit, it is clear that the planning board may face another challenge (with no argument available on standing) if it continues to approve major subdivision applications with inadequate waterpoints.

Double-Dipping with Child Support

In New York, child support is calculated pursuant to the Child Support Standards Act ("CSSA") which can be found in New York Domestic Relations Act Sec. 240 and also in Section 413(1-b) of the Family Court Act. For the most part, the child support can usually be calculated in a reasonably straight-forward manner, using the following applicable percentages:

• 17% for one child;
• 25% for two children;
• 29% for three children;
• 31% for four children; or
• No less than 35% for five or more children.

Once it's determined which percentage is applicable, each parent's income is reduced by FICA and medicare deductions (*additional deductions from gross income are also allowed, but for purposes of this discussion, we are going to utilize the more common scenario). Once each parent's adjusted income has been determined, they will be combined and then multiplied by the applicable percentage (above) to calculate the annual child support total. Then, the non-custodial parent's adjusted income is divided by the annual child support total in order to calculate the non-custodial's percentage of responsibility ("pro rata share") of the payment of the annual child support total.

Once the percentage is determined, you simply multiply the annual child support total by the non-custodial parent's pro rata percentage. This total reflects the non-custodial parent's annual child support obligation. Easy, right? Well, a recent issue has arisen in our office that has us family law attorneys debating, researching and debating some more.

What happens when the non-custodial parent has taken an early withdrawal from his/her 401(k) retirement? Need more information? Okay, in this case, the husband's 401(k) deductions are paid into a retirement plan and his child support obligation was based upon his gross wages (which already included the money that was paid into the retirement account). So, while the husband certainly had to claim the early withdrawal as income on his tax returns, I do not believe his child support obligation needs to be changed because of this artificial inflation of income. I think my argument in this regard is even stronger when you take into consideration the fact that his gross wages (which were used to compute his child support obligation) already included the money he has now taken as a withdrawal. So, why isn't this considered a double dip if the court now makes this non-custodial father include his early withdrawal as additional income to be used to recalculate the child support?

More to follow...