In Arthur v. Arthur, 2017 NY Slip Op 01608 (3rd Dept.), the Court held that appellant husband was not entitled to a credit against his child support payment for the carrying charges he incurred on his separate property home for the period that the Court awarded exclusive occupancy to the respondent wife.  The Court denied the credit because the husband had not been ordered to pay the carrying charges on the home and he was already contractually obligated to pay the charges on his separate property.  Decisions like this present a clear conflict between the application of the law and economic reality.

The Court awarded use of the husband’s separate property to the wife.  Absent this award, the husband could have occupied the home himself and thereby avoided paying for his own housing or he could have received rental income from a paying tenant. The Court’s decision deprived the husband of the economic benefit of either avoiding a rental expense or receiving rental income.  This was in addition to ordering the husband to pay full child support based on imputed income.  Economically, there is no meaningful distinction between depriving the husband of these economic benefits of his separate property home and ordering the husband to pay for the wife and children’s housing expense. The Second Department recognized as much in Davidman v. Davidman, 97 A.D.3d 627, 948 N.Y.S.2d 639, 2012 N.Y. App. Div. LEXIS 5415, 2012 NY Slip Op 5493 (N.Y. App. Div. 2d Dep’t 2012), when it held that giving the plaintiff exclusive use of the defendant’s separate property home, without obligating the plaintiff to pay the carrying charges or crediting the defendant for payment of those carrying charges, resulted in the defendant paying double shelter expenses.

The Second Department’s 1985 decision, Yecies v. Yecies, 108 AD2d 813 [1985], offers another perspective that contradicts the Arthur result. In that case the Court credited husband for making payments that the wife “would have had to otherwise bear.” Although in Arthur the wife was not legally obligated to pay the mortgage on the husband’s separate property home, she would have been obligated to pay some occupancy expense to shelter herself and her two children. By complying with the Court’s order that he allow the wife to occupy his separate property home the husband relieved the wife of an occupancy expense that she would have otherwise had to bear. Why should he not receive credit for this against his support obligation, or at least have his support obligation reduced to acknowledge that he was already contributed to the housing of the wife and children?

The key to avoiding the double housing expense result appears to be framing the issue, not as credit for payment of carrying charges, which, in some ways, was “voluntary,” (if you consider not losing your separate property to foreclosure as voluntary), but rather as the mandatory contribution of housing that eliminated an occupancy expense that the wife would otherwise have had to bear. In similar situations, it may be a better strategy to not focus on the “voluntary” payment of the carrying costs of the home and instead focus on the court-order to provide housing in addition to child support, which results in a double housing expense and relieves the wife of a housing expense she would otherwise be obligated to incur.

Husband was represented by Michael L. Boyle of Tully Rinckey, PLLC. Wife was represented by Cynthia Feathers.