Levy v. Levy
| Decision Date | 03 April 2007 |
| Docket Number | 2005-06012. |
| Parties | EDWARD LEVY, Respondent, v. APRIL LEVY, Appellant. |
| Court | New York Supreme Court — Appellate Division |
Ordered that the judgment is modified, on the law, on the facts, and as an exercise of discretion, by deleting the fourth decretal paragraph thereof directing the plaintiff to pay to the defendant the sum of $1,933 per month in child support, and substituting therefor a provision directing the plaintiff to pay to the defendant the sum of $2,368 per month in child support, subject to reduction to the sum of $2,042 per month when the parties' oldest child reaches the age of 21 or is otherwise emancipated and to the sum of $1,388 per month when the parties' second child reaches the age of 21 or is otherwise emancipated; as so modified, the judgment is affirmed insofar as appealed from, without costs or disbursements.
In the circumstances presented here, the Supreme Court improvidently exercised its discretion in awarding child support solely on the basis of the first $80,000 of the combined parental income. In order to calculate the father's child support obligation, the Supreme Court should have applied the statutory percentage to the combined parental income up to $80,000 and then, with respect to the balance of the combined parental income, "the Court should have (1) applied the factors set forth in Domestic Relations Law § 240 (1-b) (f) (1) through (10), or (2) applied the standard `child support percentages' specified in Domestic Relations Law § 240 (1-b) (b) (3), or (3) applied some combination of both the two approaches stated above" (Lee v Lee, 18 AD3d 508, 510 [2005]). Contrary to the conclusion reached by the Supreme Court, this is not a "high income" case in which it is appropriate to disregard the parental income because support in excess of the children's documented needs is in issue (cf. Matter of Brim v Combs, 25 AD3d 691, 692 [2006]).
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