Giraldo v. Fernandez

• Decision Date: 10 November 2021
• Docket Number: 2020-07205,Docket No. F-2226-19/19B
• Citation: 199 A.D.3d 796,158 N.Y.S.3d 149
• Parties: In the Matter of Michela GIRALDO, respondent, v. Carlos M. FERNANDEZ, appellant.
• Court: New York Supreme Court — Appellate Division

199 A.D.3d 796

158 N.Y.S.3d 149

In the Matter of Michela GIRALDO, respondent,

v.Carlos M. FERNANDEZ, appellant.

2020-07205

Docket No. F-2226-19/19B

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

Submitted—October 8, 2021

November 10, 2021

Sandra Stines, Westbury, NY, for appellant.

Charles Lawson, Brooklyn, NY, for respondent.

WILLIAM F. MASTRO, J.P., ROBERT J. MILLER, FRANCESCA E. CONNOLLY, LARA J. GENOVESI, JJ.

DECISION & ORDER

In a proceeding pursuant to Family Court Act article 4, the father appeals from an order of the Family Court, Nassau County (Ellen R. Greenberg, J.), dated August 26, 2020. The order denied the father's objections to an order of the same court (Sondra M. Toscano, S.M.) dated March 13, 2020, which, after a hearing, granted the mother's petition for an upward modification of his child support obligation as set forth in a stipulation entered in the Family Court, Bronx County, dated September 6, 2013, and increased his child support obligation from $300 per month to $522.55 biweekly.

ORDERED that the order dated August 26, 2020, is affirmed, with costs.

The parties have one child together. On September 6, 2013, a stipulation regarding child support was entered in the Family Court, Bronx County, directing the father to pay child support to the mother in the sum of $300 per month (hereinafter the stipulation). The stipulation also stated that the father would provide health insurance benefits for the child. On February 7, 2014, a judgment of divorce was entered in the Supreme Court, Bronx County, which incorporated, but did not merge, the stipulation. The judgment of divorce also provided that the father, as "the relative legally responsible to supply health insurance benefits," shall do so until the child reaches 21 years of age. The judgment of divorce further provided: "Each party has the right to seek a modification of the child support order upon a showing of (I) a substantial change in circumstances, or (II) that three years have passed since the order was entered, last modified or adjusted, or (III) there has been a change in either party's gross income by 15 percent or more since the order was entered, last modified or adjusted; however, if the parties have specifically opted out of subparagraphs (II) or (III) of this paragraph in a validly executed agreement or stipulation, then that basis to seek modification does not apply. The parties have not elected to opt[ ] out of subparagraphs (II) or (III)."

On May 23, 2019, the mother filed a petition in the Family Court, Nassau County, for an upward modification of the father's child support obligation pursuant to the terms of the judgment of divorce. She alleged a change in circumstances in that the father "makes more money, our son is older and requires more." She further alleged that "[t]he parties have not specifically agreed otherwise in a validly executed agreement or stipulation and three years have passed since the order was entered, last modified or adjusted." In support of her petition, the mother submitted the father's 2018 federal tax return, which demonstrated that the father's total income was $117,316, a substantial increase from his $45,000 annual income at the time the stipulation was entered.

On June 27, 2019, the Family Court, Nassau County, issued a temporary modification of an order of support, increasing the father's child support obligation from that set forth in the stipulation to $500 biweekly. After a hearing, in a fact-finding order dated March 13, 2020, the Support Magistrate found that the mother "has met her burden of proving a substantial change in circumstances" in that the father's income has increased by at least 15% since the entry of the judgment of divorce. The Support Magistrate determined the mother's income to be $98,680, the father's income to be $115,377.36, and the combined adjusted gross income to be $193,462.23. With the statutory child support percentage for one child as 17% (see Family Ct Act § 413[1][b][3][i] ), and the child support cap as $148,000, the child support obligation, as calculated by the Support Magistrate in accordance with the Child Support Standards Act (hereinafter CSSA), is $25,160 annually, or $987.79 in biweekly support for both parents. The Support Magistrate determined that the mother and father have a respective child support obligation of 46% and 54%, and modified the father's child support obligation to $522.55 biweekly. The fact-finding order further required the father to continue to cover the child under his health insurance through his employer. That same day, the Support Magistrate issued an order, inter alia, directing the father to pay child support in the sum of $522.55 biweekly.

On May 11, 2020, the father filed objections to the Support Magistrate's order. The father alleged that the order granted relief based on a cause of action never alleged by the mother and granted relief that was not requested or supported by the record, and the support obligation is unjust and inappropriate. In an order dated August 26, 2020, the Family Court denied the father's objections. The father appeals.

" ‘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 Peddycoart v. MacKay, 145 A.D.3d 1081, 1083, 45 N.Y.S.3d 135, quoting Matter of Freeman v. Freeman, 71 A.D.3d 1143, 1144, 898 N.Y.S.2d 65 ). When the parties’ combined income is more than the statutory cap—in this case, $148,000, " ‘the court has the discretion to cap the support obligation at an amount based on the statutory cap or order child support above the statutory cap, based on the factors set forth in Family Court Act § 413(1)(f) and/or the child support percentage set forth in Family Court Act § 413(1)(c)(3) ’ " ( Matter of Murray v. Murray, 164 A.D.3d 1451, 1453, 84 N.Y.S.3d 524, quoting Matter of Santman v. Schonfeldt, 159 A.D.3d 914, 915, 70 N.Y.S.3d 79 ). "Where, as here, the combined parental income exceeds the statutory cap, in fixing the basic child support obligation on income over the cap, the court has the discretion to apply the factors set forth in Family Court Act § 413(1)(f), or to apply the statutory percentages, or both" ( Matter of Good v. Ricardo, 189 A.D.3d 830, 831, 136 N.Y.S.3d 472, citing Family Ct Act § 413[1][c][3] ; see Matter of Calta v. Hoagland, 167 A.D.3d 598, 89 N.Y.S.3d 247 ).

"The court may modify an order of child support, including an order incorporating without merging an agreement or stipulation of the parties, upon a showing of a substantial change in circumstances" ( Family Ct Act § 451[3][a] ). Additionally, unless the parties have specifically opted out, "[s]ection 451 of the Family Court Act permits a court to modify an order of child support where (1) either party's gross income has changed by 15% or more since the order was entered or modified, or (2)...