Y.D. v. L.O.

• Decision Date: 13 October 2022
• Docket Number: Docket No. F-14767-19
• Parties: In the Matter of a Proceeding for Support Under Article 4 of the Family Court Act, Y.D., Petitioner, v. L.O., Respondent.
• Court: New York County Court

77 Misc.3d 964
182 N.Y.S.3d 534

In the Matter of a Proceeding for Support Under Article 4 of the Family Court Act, Y.D., Petitioner,
v.
L.O., Respondent.

Docket No. F-14767-19

Family Court, New York, New York County.

Decided on October 13, 2022

182 N.Y.S.3d 535

Patricia Ann Fersch and Shane P. Duffy for petitioner.

James D'Elicio for respondent.

Hasa A. Kingo, J.

77 Misc.3d 965

On September 19, 2022, respondent Y.D. ("Respondent") timely filed an objection to an order of support dated February 12, 2022 (the "Support Order") and findings of fact dated July 16, 2022 ("Findings of Fact") entered by Support Magistrate Amanda Norejko (the "Magistrate") and provided by the court to counsel for the parties on August 19, 2022. Petitioner submitted proof of service of the objection upon counsel to petitioner L.O. ("Petitioner"), who timely filed a rebuttal. After review of the underlying matter and the court file, including the objection, the rebuttal, a reply submitted by Respondent, procedural history, transcripts and audio recordings of the hearing, the objection is denied.¹

Background

Petitioner and Respondent are the parents of one child, born XX XX, 2011 (the "subject child"). On December 11, 2019, Petitioner filed a petition which sought to establish an order of support against Respondent for the subject child. After a substantial delay caused by the COVID-19 pandemic, a fact-finding hearing was held on the petition on December 11, 2020, December 23, 2020, January 6, 2021, February 5, 2021, February 10, 2021, February 17, 2011, February 24, 2021, March 26, 2021, March 30, 2021, and March 31, 2021.

182 N.Y.S.3d 536

The Support Order and Findings of Fact were entered thereafter, and the court emailed copies to counsel for the parties on August 19, 2022.

The Support Order designates Respondent as the non-custodial parent for the purposes of support and provides that Respondent shall pay basic support of $4,661.00 a month, 100% of costs

77 Misc.3d 966

for childcare, education, extra-curricular, unreimbursed health related expenses, and $91,194.91 in Retroactive support.² The basic support award is based on an income cap of $350,000. Upon consideration of the factors specified in Family Court Act ("FCA") § 413(1)(f), the Magistrate determined that Respondent's pro rata share of the basic support obligation reached using the statutory cap of $154,000 would be unjust and/or inappropriate for the following reasons:

• The financial resources of the custodial and non-custodial parent, and those of the child;

• The standard of living the child would have enjoyed had the marriage or household not been dissolved;

• The gross income of one parent is substantially less than the other parent's gross income;

(Objection, Exhibit A, Support Order at 2).

As set forth in the Findings of Fact, the following documents were entered into evidence: financial statements, pay stubs, tax returns, W-2's, and proof of additional expenses submitted by both parties. An itemized list of income and deductions of both parties and calculation of pro rata shares is annexed to the Findings of Fact as Appendix A. A list of all documents entered into evidence is annexed as Appendix B. The Magistrate calculated the parties’ income and determined that Petitioner's adjusted gross income is $71,566.96, which is inclusive of Petitioner's wages and $10,000 annually imputed to Petitioner based upon financial assistance from her family (Support Order, Appendix A; Findings of Fact ¶¶ 6-14). The Magistrate determined that Respondent's adjusted gross income is $1,048,938.45, including wages, bonuses, and small amounts of interest and dividends from investments (Support Order, Appendix A; Findings of Fact ¶¶ 15-18). Based on these figures, the Magistrate determined that the presumptively correct amount of basic child support pursuant to the CSSA on income up to statutory cap of $154,000 is $2050.77 (id. ¶ 20). Citing the substantial disparity between the parties’ incomes and the standard of living the child would

77 Misc.3d 967

have enjoyed if the parties’ remained together, Petitioner sought an award based on combined above the cap income of $500,000 (id. ¶ 19). Respondent opposed and asserted that basic support of $2750 per month is appropriate to meet the needs of and maintain the standard of living of the child (id. ¶ 20). The Magistrate considered each of the factors enumerated under FCA § 413(1)(f) (the "paragraph (f) factors") and determined that an income cap of $350,000 is appropriate (Findings of Fact ¶ 23-24). She then calculated the child support percentage for one child of 17% set forth in FCA § 413(1)(b)(3) at $59,500 annually, and determined that Respondent's pro rata share is 94%, which resulted in a monthly award of $4,661.00 per month (Findings of Fact ¶ 25).

182 N.Y.S.3d 537

Respondent now objects to the Magistrate's findings. Respondent argues primarily that "the basic support amount is unjust and inappropriate because the evidence at trial showed that the parties did not lead a luxurious lifestyle and that the financial resources of Petitioner were sufficient to continue the standard of living the child enjoyed during the relationship when supplemented by the presumptive child support amount of $2,050.77" (Objection ¶ 2). Respondent further argues that the Magistrate "assigned too much weight to the fact that Respondent's financial resources are significantly higher than those of Petitioner and awarded a basic support amount that constitutes support for Petitioner herself rather than a support amount appropriate to meet the needs of the child" (id. ¶ 3). Finally, Respondent argues that the Magistrate miscalculated Petitioner's expenses, did not properly determine which of Petitioner's costs were attributable to the child, and did not give appropriate weight to the parent's equal access time with the child (id. at 7-18). Petitioner argues in her rebuttal that the Magistrate properly considered the paragraph (f) factors when calculating the combined income cap, properly calculated Petitioner's expenses and those attributable to the child, and gave proper weight to all relevant factors.

Discussion

Family Court Act § 439 (a) empowers Support Magistrates "to hear, determine and grant any relief within the powers of the Court," in proceedings properly before them. FCA § 439 (e) provides that the Support Magistrate's determination

77 Misc.3d 968

"shall include findings of fact and ... a final order." The parties are permitted by statute to submit "specific written objection," to the order for "review" by a Family Court judge. The review of the Support Magistrate's order is essentially equivalent to an appellate review of such an order (see Matter of Cherrez v. Lazo , 102 A.D.3d 781, 782, 957 N.Y.S.2d 888 [2d Dept. 2013] ). The scope of that review, however, is narrow, and confined to whether the Support Magistrate, as the trier of fact, has made the necessary findings of fact and whether, upon review of the record, the findings of fact present a reasonable basis for that order. The findings of the Magistrate must be given great deference, as they are in...