Martin v. Buckley
| Decision Date | 02 December 2011 |
| Docket Number | No. 2011/08980.,2011/08980. |
| Citation | 946 N.Y.S.2d 67 |
| Parties | Kurt D. MARTIN, Plaintiff, v. Kathleen BUCKLEY, Defendant. |
| Court | New York Supreme Court |
Following the court's October 27, 2011, Decision and Order, the parties submitted updated financials and affidavits. Contrary to the father's objections thereto, the court finds that the mother's employment circumstances were such that more complete documentation than was provided will be well-nigh impossible to locate. She has worked a variety of part-time jobs, some paying in cash, in large part because of the severe special needs of the parties' child, and in some measure by reason of her unavailability for employment because of substance abuse behavior. Accordingly, the documentation sought by plaintiff is not likely to exist. In any event, the statute requires that “[t]he court shall make an order for temporary child support notwithstanding that information with respect to income and assets of either or both parents may be unavailable.” DRL § 236(b)(7). The court observes that the moving party has submitted a sworn statement of net worth, 22 N.Y.C.R.R. § 202.16(g), such that it would be inappropriate to accede to plaintiff's demand to defer a CSSA determination to the time of trial.
The parties agree in large part on their respective roles in raising their child and the amount of time each spends with their child, but some disputes exist. Each presents a detailed account, and plaintiff has attempted to quantify it in his affidavit which, he contends, shows that he spends slightly more time with the child than the mother does now that she is back in Rochester following substance abuse treatment in 2010. It appears undisputed that plaintiff was the sole care-giver (with school personnel, aides, and intermittent hospital care) when defendant was in substance abuse treatment. Nevertheless, the court will treat plaintiff's breakdown for the months of September and October 2011 as a description of the current shared custody arrangement, which in large measure is likely to continue without a relapse on the part of defendant.
The small disparity in time with the child with each respective parent urged by plaintiff to be in his favor does not take this case out of the essentially 50–50 shared custody arrangements scenario recognized in the CSSA case law. Compare, Matter of Joleene D.R. Robert J.W., 15 Misc.3d 1148(A), 2007 WL 1704616 (Fam. Ct. Oswego Co. June 14, 2007)(large disparity satisfies burden to show which was the custodial parent), with, Kaye v. Kaye, 6 Misc.3d 1005(A), 2005 WL 41558 (Sup.Ct. N.Y. Co. Jan. 5, 2005)(“the parties share roughly equivalent amounts of time with the children”)(emphasis supplied). Given the small difference in times with the children alluded to by plaintiff, which is admittedly not equal, but is “roughly” so, “identifying the [non -]custodial parent based on relative incomes is consistent with the intent of the CSSA to make sure that the children enjoy a particular standard of living, wherever they happen to be residing at a particular time.” Id. 6 Misc.3d 1005(A), 2005 WL 41558 at *9. Accordingly, and particularly in view of defendant's income figures, plaintiff is determined to have the greater pro rata share of the child support obligation and is identified as the non-custodial parent for child support purposes. Eberhardt–Davis v. Davis, 71 A.D.3d 1487, 897 N.Y.S.2d 376 (4th Dept.2010).
This latter rationale eschews the formalistic, hour by hour, overnight by overnight, approach taken by the father in his affidavit. With one exception involving a recent emergency trip to the hospital asserted in the father's affidavit, the mother's detailed account of her care for the child, which involves taking him to his doctor's appointments while in the care of child heath aides who provide weekly care to him (because the aides provide no transport), is uncontradicted by the father, who treats hours “with aides” as “not with either party.” As the mother asserts, again without contradiction in specifics (except for the recent hospital emergency), “doctor appointments usually take several hours per day” when they occur, and sometimes all day or overnight. In short, despite the relatively small hours/days differential asserted in the father's affidavit to be in his favor, his figures do not account for the mother's regular attendance with the child during time with the health care aides and when doctor visits are required nor does it account for her attendance during hospital visits. The only exceptions to this appear to be when in 2010 the mother was attending in-patient substance abuse treatment out of state, and the recent hospital emergency referred to by the father. Accordingly, the mother fully supports her assertion that she has been the primary homemaker while the plaintiff was the primary breadwinner.
On these facts, it would be overly formalistic to find that the father is the custodial parent for CSSA purposes. In any functional sense, given the very limited financial resources generated by the mother due to the extraordinarily intensive and time consuming child care needs which must be brought to bear on the situation, the court finds that physical custody is equal enough such that the father, having the greater pro-rata share of the child support obligation, must be identified as the non-custodial parent having an obligation to pay child support. Moore v. Shapiro, 30 A.D.3d 1054, 815 N.Y.S.2d 855 (4th Dept.2006); Redder v. Redder, 17 A.D.3d 10, 792 N.Y.S.2d 201 (3d Dept.2005). Of course, this determination is for pendente lite purposes only, and the matter will not be ripe for final determination until the discovery process is exhausted and evidence is presented at trial. Suffice to say that the facts as found above are sufficiently undisputed on the current record that the court finds that no pendente lite hearing is necessary.
Although it has been held that, in pendente lite cases, courts “are not required to deduct the maintenance award from ... [the] gross income before applying the formula set forth by the ... [CSSA],” Welker v. Welker, 72 A.D.3d 655, 657, 898 N.Y.S.2d 605 (2d Dept.2010)(emphasis supplied), not doing so in this case would be unjust and unreasonable given the vast income disparity present and the double counting that the new temporary maintenance statute appears to require when making pendente lite awards ( see below). Accordingly, even though temporary maintenance likely will not terminate during the pendency of this action, except in the unfortunate event of the child's passing, the court's temporary order will require plaintiff to pay maintenance and it will also provide “for a specific adjustment ... in the amount of child support payable upon termination of ... maintenance” DRL § 240[1–b] (b)(5)(vii)[C], such that the statute will allow plaintiff to deduct his maintenance obligation in arriving at the amount of his income available for child support. Cf., Salvato v. Salvato, ––– AD3d –––– (4th Dept. November 18, 2011)(“there was no provision for an adjustment of child support upon the termination of maintenance, and thus there was no basis for the court to deduct maintenance from defendant's income in determining the amount of child support”); Lenigan v. Lenigan, 159 A.D.2d 108, 111, 558 N.Y.S.2d 727 (3d Dept .1990). In other words, given the dictates of the new temporary maintenance statute, applying the rationale of the “double shelter allowance” cases under the CSSA comes to mind. In such cases, “[t]he usual method of rendering an improper double award for shelter is to deduct the amount awarded for carrying charges from the payor spouse's income before determining the appropriate amount for child support ... [and] then recalculat[e] based on that figure, and that amount is awarded together with a direction to pay the carrying charges.” Ryder v. Ryder, 267 A.D.2d 447, 448, 700 N.Y.S.2d 862 (2d Dept.1999). See also, Barone v. Barone, 292 A.D.2d 481, 482, 740 N.Y.S.2d 350 (2d Dept.2002), and esp., Sincurelli v. Sincurelli, 285 A.D.2d 541, 542 (2d Dept.2001)(collecting cases). Thus by providing in the pendente lite order for the specific adjustment of the CSSA obligation payable upon termination of maintenance called for under DRL § 240[1–b](b)(5)(vii)(C), a similar avoidance of double counting in the child support and maintenance awards may be achieved.
However, because the new temporary maintenance statute plainly also involves double counting of, inter alia, such carrying charges, Lee Rosenberg, Multiple Flaws in New Interim Spousal Support Statute, N.Y.L.J. (February 25, 2011)(“double counting of housing, child care, and medical insurance between this [interim maintenance] law and the child support law”)( ), a credit for carrying costs where they are ordered to be paid by the monied spouse must be deducted from each award to avoid a finding that they are, either alone or in combination, unjust or inappropriate. Id. (). Accordingly, the court turns to the issue of temporary maintenance before making the CSSA calculation.
The mother has asked the court to impute income to her in an amount no more that $10,000.00. The father, however, who avers that he does not know how much she has earned since he separated the couple's finances in 2004, submits the affidavit of defendant's sister and former husband, the latter of which pays her $250/month child support for their child in common, P––––. The sister helped defendant with budget management between April and mid May 2011, and questions defendant's expense figures in her revised Statement of Net Worth. She also asserts, supported by the affidavit of defendant's former husband, that he pays her more than $250/month for...
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