Eberhardt-Davis v. Davis
| Decision Date | 19 March 2010 |
| Citation | 71 A.D.3d 1487,897 N.Y.S.2d 376 |
| Parties | Emily EBERHARDT-DAVIS, Plaintiff-Respondent-Appellant, v. Peter J. DAVIS, Defendant-Appellant-Respondent. |
| Court | New York Supreme Court — Appellate Division |
Lipsitz Green Scime Cambria LLP, Buffalo (John A. Collins of Counsel), for Defendant-Appellant-Respondent.
Stiller & Vance, Buffalo (James P. Renda of Counsel), for Plaintiff-Respondent-Appellant.
PRESENT: SCUDDER, P.J., PERADOTTO, LINDLEY, AND SCONIERS, JJ.
Defendant father appeals and plaintiff mother cross-appeals from a judgment of divorce that, inter alia, directed the father to pay child support to the mother in the sum of $100 per week. Contrary to the contention of the father, Supreme Court properly determined that the parties had a shared custody arrangement and that he was the noncustodial parent. Where "the parents' custodial arrangement splits the child[ ]'s physical custody so that neither can be said to have physical custody of the child[ ] for a majority of the time, the parent having the greater pro rata share of the child support obligation ... should be identified as the noncustodial parent for the purpose of [child] support regardless of the labelsemployed by the parties" ( Matter of Moore v. Shapiro, 30 A.D.3d 1054, 1055, 815 N.Y.S.2d 855 [internal quotation marks omitted]; see also Keeler v. Keeler, 306 A.D.2d 890, 760 N.Y.S.2d 921). In light of the parties' agreement to maintain shared, equal custody of the child, the father failed to establish that he would maintain physical custody of the child for a majority of the time.
Contrary to the contention of the mother on her cross appeal, the court properly calculated the amount of child support and the parties' respective shares thereof. In calculating the parties' income for child support purposes, "a court is not required to use reported income but, rather, may base its determination on [the parties'] actual income and ability to support the child[ ]" ( Stanley v. Hain, 38 A.D.3d 1205, 1206, 833 N.Y.S.2d 344). Inasmuch as the mother was receiving a higher salary at the time of the hearing than she had received the previous year, the court was not required to determine her income based on her federal tax return for the previous year. In addition, the court properly set forth its reasons for determining that it would be unjust or inappropriate to require the father to pay child support pursuant to the statutory percentage and thus that it was necessary to...
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