Ball v. Ball

• Decision Date: 25 May 2017
• Citation: 56 N.Y.S.3d 583,150 A.D.3d 1566
• Parties: Elisa BALL, Appellant–Respondent, v. Lawrence E. BALL, Respondent–Appellant.
• Court: New York Supreme Court — Appellate Division

150 A.D.3d 1566
56 N.Y.S.3d 583

Elisa BALL, Appellant–Respondent,
v.
Lawrence E. BALL, Respondent–Appellant.

Supreme Court, Appellate Division, Third Department, New York.

May 25, 2017.

56 N.Y.S.3d 586

Steven Nussbaum, New Paltz, for appellant-respondent.

Blatchly & Simonson, PC, New Paltz (Bruce D. Blatchly of counsel), for respondent-appellant.

Amy Ingram, Kingston, attorney for the child.

Mariane B. Cocose, Bearsville, attorney for the children.

Before: PETERS, P.J., LYNCH, ROSE, DEVINE and MULVEY, JJ.

LYNCH, J.

Cross appeal from a judgment of the Supreme Court (Mott, J.), entered October 16, 2015 in Ulster County, granting, among other things, equitable distribution of the parties' marital property, upon a decision of the court.

Plaintiff (hereinafter the wife) and defendant (hereinafter the husband) were married in 1992 and have four children (born in 1993, 1999, 2003 and 2007). The wife moved out of the marital home in March 2013 and commenced this action for a divorce in May 2013 seeking joint custody of the minor children, child and spousal support, equitable distribution of marital property and counsel fees. The husband answered and counterclaimed for custody, child support and equitable distribution. Supreme Court issued a pendente lite order awarding child support payable by the wife to the husband and spousal support payable by the husband to the wife in nearly equal amounts, thus neither party was obligated to pay support to the other. The court, after a hearing, also issued a temporary custody order granting the parties

56 N.Y.S.3d 587

joint legal custody with primary physical custody to the husband and parenting time to the wife three days each week with an alternating fourth day every two weeks. The court also awarded the wife parenting time during two three-week periods in the summer. In August 2014, parenting time was modified to provide that "the wishes of the minor child [born in 1999] to remain with one parent or the other shall not be withheld by either party." Further, the parties agreed during the proceeding to alternate parenting time during the summer biweekly.

Following a nonjury trial, Supreme Court issued a judgment of divorce which, as relevant here, granted the parties joint legal custody with the husband having primary physical custody of the three minor children "with the parties to share physical custody ... as set forth in the temporary custody orders." The wife was awarded retroactive and continuing child support, expert and counsel fees and the ability to declare one of the children as a dependent for tax purposes. Each party was denied a distributive award based on the other's enhanced earnings. Both parties now appeal.

Initially, while neither party challenges Supreme Court's allotment of parenting time, the mother challenges the court's designation of the father as the "primary" custodian. Where, as here, the parties share physical custody, the court can determine the "primary custodial parent" for purposes of the Child Support Standards Act (see Domestic Relations Law § 240[1–b] [hereinafter CSSA] ) "based upon the reality of the situation by determining who has physical custody of the children for a majority of the time" (Riemersma v. Riemersma, 84 A.D.3d 1474, 1476, 922 N.Y.S.2d 616 [2011] [internal quotation marks and citations omitted]; see Bast v. Rossoff, 91 N.Y.2d 723, 728, 675 N.Y.S.2d 19, 697 N.E.2d 1009 [1998] ). If parenting time is shared equally, the noncustodial parent for purposes of the CSSA is the parent with the greater income (see Matter of Mitchell v. Mitchell, 134 A.D.3d 1213, 1214, 21 N.Y.S.3d 438 [2015] ). Here, the temporary order held that the parties shared parenting time "on an approximate 50–50 basis" and Supreme Court ordered that parenting time continue in this manner. In the judgment of divorce, the court continued this custodial order but, when calculating child support, recognized the husband's greater income and concluded that, based upon "the near[ ] equal division of custodial time," the wife was entitled to child support. Based on the court's findings with regard to the parenting schedule, which neither party challenges, we find that Supreme Court should not have concluded that the husband was the primary custodial parent (see Shamp v. Shamp, 133 A.D.3d 1213, 1214–1215, 20 N.Y.S.3d 265 [2015] ). Further, because the court effectively and properly deemed the husband to be the noncustodial parent based on his greater income (see Matter of Mitchell v. Mitchell, 134 A.D.3d at 1216, 21 N.Y.S.3d 438 ), we find that, on this record, it was harmless error. Nevertheless, we modify the judgment accordingly.

Next, both parties challenge Supreme Court's determination with regard to child support. When calculating a party's child support obligation in a shared custody situation, the court must employ the three-step framework of the CSSA (see Bast v. Rossoff, 91 N.Y.2d at 726, 675 N.Y.S.2d 19, 697 N.E.2d 1009 ; Matter of Ross v. Manley, 135 A.D.3d 1104, 1106, 23 N.Y.S.3d 433 [2016] ). First, the court must calculate the parties combined parental income pursuant to

Domestic Relations Law § 240(1–b)(b) (5)(i). Second, that amount, up to the statutory cap, is multiplied

56 N.Y.S.3d 588

by the specified percentage based upon the number of children (see Domestic Relations Law § 240[1–b][b][3][i] ; [c][2], [3] ). That sum is then allocated in accordance with each parent's pro rata share of the combined parental income (see Domestic Relations Law § 240[1–b][b][3] [iii] ; Bast v. Rossoff, 91 N.Y.2d at 726–728, 675 N.Y.S.2d 19, 697 N.E.2d 1009 ). Third, where, as here, the combined parental income exceeds the statutory cap, the court must "determine the amount of child support for the amount of the combined parental income in excess of such dollar amount through consideration of the factors set forth in [Domestic Relations Law § 240(1–b)(f) ] and/or the child support percentage" (Domestic Relations Law § 240 [1–b][c][3] ; see Holterman v. Holterman, 3 N.Y.3d 1, 11, 781 N.Y.S.2d 458, 814 N.E.2d 765 [2004] ; Bast v. Rossoff, 91 N.Y.2d at 727, 675 N.Y.S.2d 19, 697 N.E.2d 1009 ; Vantine v. Vantine, 125 A.D.3d 1259, 1262, 4 N.Y.S.3d 375 [2015] ). Put differently, the court must apply either the percentage or statutory factors to the excess income, "or some combination of the two" and, "[i]n doing so, the trial court must set forth a record articulation for deviating or not deviating from the statutory guideline and relate that articulation to the statutory factors" (Moschetti v. Moschetti, 277 A.D.2d 838, 840, 716 N.Y.S.2d 802 [2000] ; see Petersen v. Petersen, 125 A.D.3d 1234, 1235, 4 N.Y.S.3d 371 [2015] ).

Here, Supreme Court determined that the parties combined parental income was $203,400 and the statutory cap, at the time, was $141,000 (see Domestic Relations Law § 240[1–b][c][2] ). After applying the statutory percentage to the statutory cap, the court determined that the presumptive amount of child support was $40,890, that the husband's share of that amount–68%–yielded monthly child support in the amount of $2,317.10 and that the wife's share–32%–yielded monthly child support in the amount of $1,090.40.¹ Next, the court applied the statutory percentage against the combined earnings in excess of the statutory cap and calculated the additional child support on the excess income to be $18,096, with the husband's pro rata share to be $1,025.40 each month and the wife's to be $482.60 each month. After completing these calculations, Supreme Court determined that the husband-"[a]s the monied spouse and the non-custodial parent for purposes of child support during the period prior to trial"-was obligated to pay child support in the amount of $2,317.10 for the period between the date that the wife first sought support and the date that the custody order was modified.² Prospectively, the court awarded the wife $1,158.55 each month, "represent[ing] fifty per cent of the [h]usband's child support obligation." The court declined to award any child support based on the combined parental income in excess of the statutory

56 N.Y.S.3d 589

cap, because it was "unnecessary," based on the application of certain factors.

Initially, we agree with the wife's argument that Supreme Court's calculation of child support was incorrect and that a modification of the husband's support obligation is necessary. First, as to the combined parental income in excess of the statutory cap, Supreme Court determined to award no support because: (1) based on the equitable distribution award, the husband would be responsible for paying a mortgage; (2) the husband supported the oldest child; (3) the husband paid for the children's health insurance; (4) each party could claim a tax deduction; and (5) ...