Ford v. Ford
| Decision Date | 15 December 2021 |
| Docket Number | 2018-02191,Index No. 14001/12 |
| Citation | 200 A.D.3d 854,161 N.Y.S.3d 103 |
| Parties | Susan FORD, appellant-respondent, v. Kenneth FORD, respondent-appellant; Tabat, Cohen, Blum & Yovino, P.C., nonparty-respondent. |
| Court | New York Supreme Court — Appellate Division |
Law Offices of Barry J. Fisher, P.C., Garden City, N.Y. (Cheryl L. Jakinovich of counsel), for appellant-respondent.
Law Office of Dorothy A. Courten, PLLC, Hauppauge, NY, for respondent-appellant.
Tabat, Cohen, Blum & Yovino, P.C., Garden City, N.Y. (Michael R. Gionesi of counsel), nonparty-respondent pro se.
LEONARD B. AUSTIN, J.P., ROBERT J. MILLER, PAUL WOOTEN, JOSEPH A. ZAYAS, JJ.
DECISION & ORDER
In a matrimonial action, the plaintiff appeals, and the defendant cross-appeals, from an order of the Supreme Court, Suffolk County (James F. Quinn, J.), dated November 21, 2017. The order, insofar as appealed from, upon reargument, adhered to prior determinations in an order of the same court dated April 20, 2017, (1) denying that branch of the plaintiff's motion which was for an award of retroactive child support and (2), upon granting that branch of the plaintiff's motion which was for an award of counsel fees, awarding the plaintiff counsel fees in the sum of $50,000. The order, insofar as cross-appealed from, upon reargument, adhered to the prior determination in the order dated April 20, 2017, awarding the plaintiff counsel fees in the sum of $50,000.
ORDERED that the order dated November 21, 2017, is modified, on the law, by deleting the provision thereof, upon reargument, adhering to the prior determination in the order dated April 20, 2017, denying that branch of the plaintiff's motion which was for an award of retroactive child support, and substituting therefor a provision, upon reargument, vacating that determination; as so modified, the order is affirmed insofar as appealed and cross-appealed from, without costs or disbursements, and the matter is remitted to the Supreme Court, Suffolk County, for further proceedings in accordance herewith.
The parties were married in 1998, and have three children together. The plaintiff commenced an action for a divorce and ancillary relief on May 4, 2012. On March 6, 2013, the plaintiff moved for pendente lite relief. In an amended order dated August 2, 2013, the Supreme Court directed the defendant, inter alia, to continue to pay to the plaintiff unallocated maintenance and child support and to pay 100% of various carrying charges on the marital residence, which was in the plaintiff's exclusive use and occupancy in accordance with a stipulation of the parties dated July 16, 2012, and awarded the plaintiff interim counsel fees in the sum of $3,000. On December 15, 2016, the parties entered into a stipulation of settlement in which they agreed, inter alia, to the defendant's prospective child support obligation. The parties agreed to submit to the court for determination the issues of retroactive child support and additional counsel fees on behalf of the plaintiff. A judgment of divorce was entered April 26, 2017.
In December 2016, nonparty Tabat, Cohen, Blum & Yovino, P.C., the plaintiff's former attorneys (hereinafter the law firm), moved for an award of counsel fees in the sum of $40,504.65, to be made payable directly to it. The defendant opposed that motion. In or about January 2017, the plaintiff moved for an award of retroactive child support, and additional counsel fees in the sum of $117,628.07. The defendant opposed the plaintiff's motion and cross-moved, inter alia, for sanctions. In an order dated April 20, 2017, the Supreme Court denied that branch of the plaintiff's motion which was for retroactive child support. The court also granted the law firm's motion, and that branch of the plaintiff's motion which was for an award of additional counsel fees to the extent of awarding the plaintiff counsel fees in the sum of $50,000, of which the sum of $40,504.65 was payable directly to the law firm. Subsequently, the plaintiff moved for leave to reargue her prior motion. The defendant opposed the plaintiff's motion and cross-moved for leave to reargue his opposition to that branch of the plaintiff's motion which was for an award of additional counsel fees. The law firm opposed the defendant's cross motion. In an order dated November 21, 2017, the court, upon reargument, adhered to its prior determinations (1) denying that branch of the plaintiff's motion which was for an award of retroactive child support, and (2) granting that branch of the plaintiff's motion which was for an award of additional counsel fees to the extent of awarding the plaintiff counsel fees in the sum of $50,000, payable as previously described. The plaintiff appeals, and the defendant cross-appeals from the November 21, 2017 order, made upon reargument.
A party's child support obligation commences, and is retroactive to, the date the application was made, which in this case was the date the action was commenced, May 4, 2012 (see Domestic Relations Law § 236[B][7][a] ; Sinnott v. Sinnott, 194 A.D.3d 868, 878, 149 N.Y.S.3d 441 ; Miklos v. Miklos, 9 A.D.3d 397, 399, 780 N.Y.S.2d 622 ). "The [Child Support Standards Act; hereinafter 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 the statutory cap that is in effect at the time of judgment" (Matter of Fanelli v. Orticelli, 170 A.D.3d 831, 832, 96 N.Y.S.3d 136 ; see Matter of Cassano v. Cassano, 85 N.Y.2d 649, 652, 628 N.Y.S.2d 10, 651 N.E.2d 878 ; Hymowitz v. Hymowitz, 119 A.D.3d 736, 742–743, 991 N.Y.S.2d 57 ). A court may deviate from directing a noncustodial parent to pay his or her share of the basic child support obligation under the CSSA if it finds that amount to be "unjust or inappropriate" (Domestic Relations Law § 240[1–b][f] ; see Park v. Park, 193 A.D.3d 1065, 1067, 147 N.Y.S.3d 690 ; Hodges v. Hodges, 35 A.D.3d 370, 370, 825 N.Y.S.2d 734 ). However, "[i]n making such a determination, the court must consider various statutory factors" (Park v. Park, 193 A.D.3d at 1067, 147 N.Y.S.3d 690 ; see Domestic Relations Law § 240[1–b][f] ). "Where the court finds that the non-custodial parent's pro rata share of the basic child support obligation is unjust or inappropriate, the court shall order the non-custodial parent to pay such amount of child support as the court finds just and appropriate, and the court shall set forth, in a written order, the factors it considered; the amount of each party's pro rata share of the basic child support obligation; and the reasons that the court did not order the basic child support obligation" (Domestic Relations Law § 240[1–b][g] ).
12"[T]he party is also entitled to a credit for any amount of temporary ... child support already paid" as well as for carrying charges on the marital home (Schiffer v. Schiffer, 21 A.D.3d 889, 890, 800 N.Y.S.2d 752 ; see DiLascio v. DiLascio, 170 A.D.3d 804, 808, 95 N.Y.S.3d 588 ; Hymowitz v. Hymowitz, 119 A.D.3d at 743, 991 N.Y.S.2d 57 ; Miklos v. Miklos, 9 A.D.3d at 399, 780 N.Y.S.2d 622 ). Both voluntary child support payments which were made prior to a pendente lite order and payments made pursuant to a pendente lite order may be credited toward a party's retroactive child support (see Sinnott v. Sinnott, 194 A.D.3d at 878, 149 N.Y.S.3d 441 ; Markowitz v. Markowitz, 146 A.D.3d 872, 874, 45 N.Y.S.3d 203 ; Verdrager v. Verdrager, 230 A.D.2d 786, 646 N.Y.S.2d 185 ).
3 Here, there is no indication that, in determining that the plaintiff was not entitled to an award of retroactive child support, the Supreme Court calculated the basic child support obligation for the parties' children in accordance with the CSSA before it, in effect, awarded unspecified credit to the defendant for payments he made and expenses he incurred during the pendency of the action. We therefore remit the matter to the Supreme Court, Suffolk County, to determine the amount of retroactive child support owed by the defendant, if any, after taking into account the payments the defendant made on behalf of the plaintiff and the children from May 4, 2012, the date that the action was commenced, until August 2, 2013, the effective date of the order granting such...
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