Lynn v. Kroenung

• Court: New York Supreme Court — Appellate Division
• Writing for the Court: REINALDO E. RIVERA
• Citation: Lynn v. Kroenung, 2012 NY Slip Op 5745, 97 A.D.3d 822, 949 N.Y.S.2d 144 (N.Y. App. Div. 2012)
• Decision Date: 25 July 2012
• Parties: In the Matter of Robert D. LYNN, appellant, v. Kerriann KROENUNG, respondent.

97 A.D.3d 822

949 N.Y.S.2d 144

2012 N.Y. Slip Op. 05745

In the Matter of Robert D. LYNN, appellant,

v.Kerriann KROENUNG, respondent.

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

July 25, 2012.

Robert D. Lynn, Valley Cottage, N.Y., appellant pro se.

Eric Ole Thorsen, New City, N.Y., for respondent.

REINALDO E. RIVERA, J.P., THOMAS A. DICKERSON, L. PRISCILLA HALL, and ROBERT J. MILLER, JJ.

In a child support proceeding pursuant to Family Court Act article 4, the father appeals, as limited by his brief, from so much of an order of the Family Court, Rockland County (Warren, J.), entered October 12, 2011, as denied his objections to (1) an order of the same court (Miklitsch, S.M.), dated December 4, 2010, denying his motion for recusal of the Support Magistrate, and (2) so much of an order of the same court entered April 1, 2011, as fixed his child support obligation at $811.54 biweekly and directed him to pay 66% of the college-related expenses of the parties' oldest child.

ORDERED that the order entered October 12, 2011, is affirmed insofar as appealed from, with costs.

Pursuant to Family Court Act § 413(1)(b)(5)(i), a court must begin its child support calculation with the parent's gross income “as should have been or should be reported in the most recent federal income tax return” ( seeDomestic Relations Law § 240[1–b][b][5][i] ). However, the court may also consider income for the tax year not yet completed ( see Eberhardt–Davis v. Davis, 71 A.D.3d 1487, 1488, 897 N.Y.S.2d 376;Matter of Azrak v. Azrak, 60 A.D.3d 937, 938, 876 N.Y.S.2d 439;Matter of Taraskas v. Rizzuto, 38 A.D.3d 910, 910, 835 N.Y.S.2d 212). Since the hearing in this case took place after the end of the 2010 tax year, but before either party had completed a 2010 tax return, it was appropriate for the Support Magistrate to base her calculation of the parties' incomes on their final 2010 pay stubs rather than their 2009 tax returns ( see Eberhardt–Davis v. Davis, 71 A.D.3d at 1488, 897 N.Y.S.2d 376;Matter of Azrak v. Azrak, 60 A.D.3d at 938, 876 N.Y.S.2d 439;Matter of Taraskas v. Rizzuto, 38 A.D.3d at 910, 835 N.Y.S.2d 212).

Where combined parental income exceeds the statutory income threshold (presently $130,000 [ seeDomestic Relations Law § 240(1–b)(c)(2); Family Ct. Act § 413(1)(c)(2); Social Services Law § 111–i(2)(b) ] ), the statute “explicitly affords an option: the court may apply the factors set forth in [Family Court Act] section 413(1)(f) ‘and/or the child support percentage’ ” (Matter of Cassano v. Cassano, 85 N.Y.2d 649, 654, 628 N.Y.S.2d 10, 651 N.E.2d 878,quoting Family Ct. Act § 413 [1][c][3] [emphasis omitted]; see Huffman v. Huffman, 84 A.D.3d 875, 876, 923 N.Y.S.2d 583;Matter of Freeman v. Freeman, 71 A.D.3d 1143, 1144, 898 N.Y.S.2d 65;Matter of Byrne v. Byrne, 46 A.D.3d 812, 814, 848 N.Y.S.2d 319;Jordan v. Jordan, 8 A.D.3d 444, 445, 779 N.Y.S.2d 121;Mercer v. Mercer, 4 A.D.3d 508, 510, 772 N.Y.S.2d 372). Since the statute “explicitly vests discretion in the court and ... [because] the exercise of discretion is subject to review ... some record articulation of the reasons for the court's choice to apply the percentage is necessary to facilitate ... review” (Matter of Cassano v. Cassano, 85 N.Y.2d at 655, 628 N.Y.S.2d 10, 651 N.E.2d 878;see Matter of Wienands v. Hedlund, 305 A.D.2d 692, 693, 762 N.Y.S.2d 90;Rohrs v. Rohrs, 297 A.D.2d 317, 318, 746 N.Y.S.2d 305). Here, the Support Magistrate properly articulated her reasons for applying the statutory percentages to parental income over the statutory threshold, and her determination was not an improvident exercise of discretion ( see Huffman v. Huffman, 84 A.D.3d at 876, 923 N.Y.S.2d 583;Matter of Freeman v. Freeman, 71 A.D.3d at 1144, 898 N.Y.S.2d 65).

Unlike the obligation to provide support for a child's basic needs, “support for a child's college education is not mandatory” ( Cimons v. Cimons, 53 A.D.3d 125, 127, 861 N.Y.S.2d 88). Instead, absent a voluntary agreement, whether a parent is obligated to contribute to a child's college education is “dependent upon the exercise of the court's discretion in accordance with Domestic Relations Law § 240(1–b)(c)(7)” ( id.), and an award will be made only “ ‘as justice requires' ” ( id. at 129, 861 N.Y.S.2d 88, quoting Domestic Relations Law § 240[1–b][c][7]; see Matter of Levison v. Trinkle, 70 A.D.3d 827, 830, 894 N.Y.S.2d 504). Here, the Support Magistrate's determination to assess college expenses in the same approximate ratio as the parties' incomes bear to one another was not an improvident exercise of discretion. Likewise, a detailed review of the Support Magistrate's findings of fact reveals that she properly considered, in setting the parties' respective support obligations, their payments for room and board and their basic support obligations for their oldest child as those payments are duplicative of one another ( see Matter of Levison v. Trinkle, 70 A.D.3d at 830, 894 N.Y.S.2d 504;Wortman v. Wortman, 11 A.D.3d 604, 607, 783 N.Y.S.2d 631).

The father's contention that the Support Magistrate was biased against him and should have recused herself lacks support in the record ( see Ashmore v. Ashmore, 92 A.D.3d...