Peddycoart v. MacKay

Appeal by the father from an order of the Family Court, Suffolk County (George F. Harkin, J.), dated February 19, 2016. The order denied the father’s objections to stated portions of an order of the same court (Barbara Lynaugh, S.M.) dated November 9, 2015, which, after a hearing, inter alia, directed him to pay child support in the sum of $542 per week.

Ordered that the order dated February 19, 2016, is modified, on the law, the facts, and in the exercise of discretion, by deleting the provision thereof denying the father’s objection to so much of the Support Magistrate’s order dated November 9, 2015, as directed him to pay child support in the sum of $542 per week, and substituting therefor a provision granting that objection to the extent of directing the father to pay child support in the sum of $378 per week and otherwise denying that objection; as so modified, the order dated February 19, 2016, is affirmed, without costs or disbursements, and the order dated November 9, 2015, is modified accordingly.

The parties, who were never married, have one daughter together, born in 2009. The father signed an acknowledgment of paternity less than nine days after the child was born. The parties did not have an order of child support for approximately six years. In 2015, the mother filed a petition against the father seeking an award of child support. After a hearing, the Support Magistrate found that the combined parental income

The father filed objections on the grounds, inter alia, that the Support Magistrate did not adequately explain her reasons for applying the statutory percentage to the combined parental income in excess of the statutory cap, the record did not justify an award based on income exceeding the cap, and the Support Magistrate made errors in determining his income.

By order dated January 29, 2016, the Family Court remanded the objections to the Support Magistrate for supplemental written findings to articulate the reasons for her decision to calculate the father’s child support obligation based on the combined parental income in excess of $141,000. In supplemental findings of fact dated February 1, 2016, the Support Magistrate stated that it was appropriate to calculate the father’s support obligation based on the combined parental income in excess of $141,000 because, inter alia, the mother lived with her parents, she worked part-time as a registered nurse in a nursing home, the father’s newborn child by a different mother enjoyed the benefits of his substantial income, and the subject child was in need of the full measure of support.

By order dated February 19, 2016, the Family Court denied the father’s objections. The father appeals, and we modify to the extent of reducing the father’s child support obligation to the sum of $378 per week.

In determining parental income under the CSSA, the court must begin with the parent’s “gross (total) income as should have been or should be reported in the most recent federal income tax return” (Family Ct Act § 413 [1] [b] [5] [i]; see Matter of Dailey v Govan, 136 AD3d 1029 , 1031 [2016]; Matter of Moran v Grillo, 44 AD3d 859 , 860 [2007]), and then proceed to consider, inter alia, other income or compensation voluntarily deferred (see generally Family Ct Act § 413 [1] [b] [5] [ii], [iii]). As pertinent to this appeal, a support magistrate may impute income to a party based on his or her future earning capacity and other resources available to the party, including “automo

Here, contrary to the father’s contention, the Support Magistrate properly relied on his 2014 federal income tax return to determine his income from employment at a car dealership and from an S-corporation of which he was the sole shareholder (see Matter of Grosso v Grosso, 90 AD3d 1672 , 1673 [2011]; Matter of Moran v Grillo, 44 AD3d at 860 ; Matter of Yarinsky v Yarinsky, 36 AD3d 1135 , 1138 [2007]; Bains v Bains, 308 AD2d 557 , 559 [2003]). The Support Magistrate also properly considered that the father received an average of $700 per month in rental income. Further, the Support Magistrate did not improvidently exercise her discretion by imputing income to the father based upon his testimony that the S-corporation paid for his automobile and other personal expenses (see Matter of McKenna v McKenna, 137 AD3d 1464 , 1466 [2016]; Matter of Geller v Geller, 133 AD3d 599 , 600 [2015]; cf. Matter of Ambrose v Felice, 45 AD3d at 583 ). Accordingly, the Support Magistrate properly determined the amount of the father’s income for the purposes of making a child support award.

However, we agree with the father that the reasons articulated by the Support Magistrate for applying the statutory percentage to the combined parental income over the statutory cap of $141,000 are not supported by the record. “The CSSA sets forth a formula for calculating child support by applying a designated statutory percentage, based upon the number of children to be supported, to combined parental income up to a particular ceiling” (Matter of Freeman v Freeman, 71 AD3d 1143 , 1144 [2010]). Where combined parental income exceeds the “statutory cap” (Matter of Parsick v Rubio, 103 AD3d 898 , 900 [2013] [internal quotation marks omitted])—in this case, $141,000—the court, “in fixing the basic child support obliga

Here, the Support Magistrate’s reasons for applying the statutory percentage to the combined parental income in excess of $141,000 were not sufficiently related to the statutory factors. In describing the parties’ respective financial situations, the Support Magistrate noted the mother’s student loan obligations, but did not consider the monthly debts and expenses burdening the father (see Family Ct Act § 413 [1] [f] [1], [7]). Although the Support Magistrate correctly observed that, at the time of the hearing, the father resided with his girlfriend and their newborn daughter, she did not adequately consider the father’s expenses with respect to his second child (see Family Ct Act § 413 [1] [f] [1], [8]; Matter of Byrne v Byrne, 46 AD3d 812 , 815 [2007]). Notably, there was testimony that, for a period of time, the father’s girlfriend was not working in order to care for the newborn child and the father was having trouble covering all of the household expenses.

Furthermore, when determining an appropriate amount of child support, a court should consider a child’s “actual needs and the amount required . . . [for him or her] to live an appropriate lifestyle” (Levesque v Levesque, 73 AD3d 990 , 990 [2010]; see Matter of Keith v Lawrence, 113 AD3d at 616 ; Matter of Parsick v Rubio, 103 AD3d at 900 ; Matter of Gluckman v Qua, 253 AD2d at 271-272 ). Here, the Support Magistrate’s conclusory determination that the subject child was in need of the full measure of child support—i.e., application of the statutory percentage to the combined parental income in excess of the statutory cap—was belied by the record. The mother’s own testimony demonstrated that the child attends public school and has no special needs or learning disabilities (see Family Ct Act § 413 [1] [f] [2]; cf. Matter of Keith v Lawrence, 113 AD3d at 616 ; Matter of Parsick v Rubio, 103 AD3d at 900 ). Moreover, the mother testified that she had no childcare expenses (cf. Matter of Pittman v Williams, 127 AD3d at 757 ), she lived rent-free at her parent’s house (cf. Matter of Ambrose v Felice, 45 AD3d at 583 ), she spent about $50-70 per week on food for the child, and there were no extraordinary expenses.

Under these circumstances, applying the statutory factors, we find that it would have been appropriate to apply the statutory percentage to the statutory cap of $141,000, with no further child support obligation based on the combined income over that amount (see Merrick v Merrick, 132 AD3d 742 , 743 [2015]; Matter of McVey v Barnett, 107 AD3d at 809 ; C.G. v F.G., 53 Misc 3d 229 , 236 [Sup Ct Richmond County 2016]; cf. Doscher v Doscher, 137 AD3d 962 , 964 [2016]; Matter of Gartmond v Conway, 54 AD3d 952 , 954-955 [2008]).

Moreover, in the interest of efficiency and judicial economy, rather than again remitting the matter to the Family Court, we deem it appropriate to conduct our own review of the record, which is sufficiently developed, and to recalculate the father’s child support obligation (see Beroza v Hendler, 109 AD3d 498 , 501 [2013]; cf. Matter of Gartmond v Conway, 54 AD3d at 954 ). The Support Magistrate found that the mother had income of $36,112 and that the father had income of $166,096, for a combined parental income of $202,208. Thus, at

The father’s remaining contention is without merit.

Dillon, J.P., Dickerson, Hinds-Radix and Maltese, JJ., concur.