Peddycoart v. MacKay

• Decision Date: 30 December 2016
• Parties: In the Matter of Danielle C. PEDDYCOART, respondent, v. Brian V. MacKAY, appellant.
• Court: New York Supreme Court — Appellate Division

145 A.D.3d 1081

45 N.Y.S.3d 135

2016 N.Y. Slip Op. 08974

In the Matter of Danielle C. PEDDYCOART, respondent,

v.Brian V. MacKAY, appellant.

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

Dec. 30, 2016.

Michael J. Alber, P.C., Commack, N.Y. (Megan M. Tomlin of counsel), for appellant.

MARK C. DILLON, J.P., THOMAS A. DICKERSON, SYLVIA O. HINDS–RADIX, and JOSEPH J. MALTESE, JJ.

Appeal by the father from an order of the Family Court, Suffolk County (George F. Harkin, J.), dated February 19, 2016. The order denied the father's objections to stated portions of an order of the same court (Barbara Lynaugh, S.M.) dated November 9, 2015, which, after a hearing, inter alia, directed him to pay child support in the sum of $542 per week.

ORDERED that the order dated February 19, 2016, is modified, on the law, the facts, and in the exercise of discretion, by deleting the provision thereof denying the father's objection to so much of the Support Magistrate's order dated November 9, 2015, as directed him to pay child support in the sum of $542 per week, and substituting therefor a provision granting that objection to the extent of directing the father to pay child support in the sum of $378 per week and otherwise denying that objection; as so modified, the order dated February 19, 2016, is affirmed, without costs or disbursements, and the order dated November 9, 2015, is modified accordingly.

The parties, who were never married, have one daughter together, born in 2009. The father signed an acknowledgment of paternity less than nine days after the child was born. The parties did not have an order of child support for approximately six years. In 2015, the mother filed a petition against the father seeking an award of child support. After a hearing, the Support Magistrate found that the combined parental income under the Child Support Standards Act (hereinafter CSSA) was $202,208, which exceeded the applicable "statutory cap" of $141,000 (see Family Ct. Act § 413[1][c] [2], [3] ; Social Services Law § 111–i[2][b] ; cf. Matter of Pittman v. Williams, 127 A.D.3d 755, 756, 7 N.Y.S.3d 227 ). In determining the father's child support obligation, the Support Magistrate applied the statutory child support percentage under the CSSA—17% for one child—to the entire amount of combined parental income, including $61,208 in excess of the statutory cap, and directed the father to pay child support in the sum of $542 per week.

The father filed objections on the grounds, inter alia, that the Support Magistrate did not adequately explain her reasons for applying the statutory percentage to the combined parental income in excess of the statutory cap, the record did not justify an award based on income exceeding the cap, and the Support Magistrate made errors in determining his income.

By order dated January 29, 2016, the Family Court remanded the objections to the Support Magistrate for supplemental written findings to articulate the reasons for her decision to calculate the father's child support obligation based on the combined parental income in excess of $141,000. In supplemental findings of fact dated February 1, 2016, the Support Magistrate stated that it was appropriate to calculate the father's support obligation based on the combined parental income in excess of $141,000 because, inter alia, the mother lived with her parents, she worked part-time as a registered nurse in a nursing home, the father's newborn child by a different mother enjoyed the benefits of his substantial income, and the subject child was in need of the full measure of support.

By order dated February 19, 2016, the Family Court denied the father's objections. The father appeals, and we modify to the extent of reducing the father's child support obligation to the sum of $378 per week.

In determining parental income under the CSSA, the court must begin with the parent's "gross (total) income as should have been or should be reported in the most recent federal income tax return" (Family Ct. Act § 413 [1][b][5][i] ; see Matter of Dailey v. Govan, 136 A.D.3d 1029, 1031, 26 N.Y.S.3d 173 ; Matter of Moran v. Grillo, 44 A.D.3d 859, 860, 843 N.Y.S.2d 674 ), and then proceed to consider, inter alia, other income or compensation voluntarily deferred (see generally Family Ct. Act § 413[1][b][5][ii], [iii] ). As pertinent to this appeal, a support magistrate may impute income to a party based on his or her future earning capacity and other resources available to the party, including "automobiles or other perquisites that are provided as part of compensation for employment to the extent that such perquisites constitute expenditures for personal use" (Family Ct. Act § 413[1] [b][5][iv] ; see Matter of Napoli v. Koller, 140 A.D.3d 1070, 1071, 34 N.Y.S.3d 488 ; Matter of Funaro v. Kudrick, 128 A.D.3d 695, 696, 8 N.Y.S.3d 433 ). Although a support magistrate "is afforded considerable discretion in determining whether to impute income to a parent" (Matter of Julianska v. Majewski, 78 A.D.3d 1182, 1183, 911 N.Y.S.2d 655 ; see Matter of Napoli v. Koller, 140 A.D.3d at 1071, 34 N.Y.S.3d 488 ), a determination to impute income " ‘will be rejected where the amount imputed was not supported by the record, or the imputation was an improvident exercise of discretion’ " (Matter of Kiernan v. Martin, 108 A.D.3d 767, 768, 970 N.Y.S.2d 69, quoting Matter of Ambrose v. Felice, 45 A.D.3d 581, 582, 845 N.Y.S.2d 411 ).

Here, contrary to the father's contention, the Support Magistrate properly relied on his 2014 federal income tax return to determine his income from employment at a car dealership and from an S-corporation of which he was the sole shareholder (see Matter of Grosso v. Grosso, 90 A.D.3d 1672, 1673, 936 N.Y.S.2d 452 ; Matter of Moran v. Grillo, 44 A.D.3d at 860, 843 N.Y.S.2d 674 ; Matter of Yarinsky v. Yarinsky, 36 A.D.3d 1135, 1138, 829 N.Y.S.2d 710 ; Bains v. Bains, 308 A.D.2d 557, 559, 764 N.Y.S.2d 721 ). The Support Magistrate also properly considered that the father received an average of $700 per month in rental income. Further, the Support Magistrate did not improvidently exercise her discretion by imputing income to the father based upon his testimony that the S-corporation paid for his automobile and other personal expenses (see Matter of McKenna v. McKenna, 137 A.D.3d 1464, 1466, 27 N.Y.S.3d 740 ; Matter of Geller v. Geller, 133 A.D.3d 599, 600, 20 N.Y.S.3d 379 ; cf. Matter of Ambrose v. Felice, 45 A.D.3d at 583, 845 N.Y.S.2d 411 ). Accordingly, the Support Magistrate properly determined the amount of the father's income for the purposes of making a child support award.

However, we agree with the father that the reasons articulated by the Support Magistrate for applying the statutory percentage to the combined parental income over the statutory cap of $141,000 are not supported by the record. "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 Freeman v. Freeman, 71 A.D.3d 1143, 1144, 898 N.Y.S.2d 65 ). Where combined parental income exceeds the "statutory cap" (Matter of Parsick v. Rubio, 103 A.D.3d 898, 900, 962 N.Y.S.2d 251 [internal quotation marks omitted] )—in this case, $141,000—the court, "in fixing the basic child support obligation on income over the ceiling, has the discretion to apply the factors set forth in Family Court Act § 413(1)(f), or to apply the statutory percentages, or to apply both" (Matter of Freeman v. Freeman, 71 A.D.3d at 1144, 898 N.Y.S.2d 65 ; see Matter of Cassano v. Cassano, 85 N.Y.2d 649, 655, 628 N.Y.S.2d 10, 651 N.E.2d 878 ; Matter of Pittman v. Williams, 127 A.D.3d 755, 756, 7 N.Y.S.3d 227 ; Matter of McVey v. Barnett, 107 A.D.3d 808, 809, 967 N.Y.S.2d 403 ). However, the Family Court must articulate an explanation of the basis for its calculation of child support based on parental income in excess of the statutory cap (see Matter of Keith v. Lawrence, 113 A.D.3d 615, 616, 978 N.Y.S.2d 316 ; Matter of Parsick v. Rubio, 103 A.D.3d at 900, 962 N.Y.S.2d 251 ). This articulation should reflect "a careful consideration of the stated basis for its exercise of discretion, the parties' circumstances, and its reasoning why there [should or] should not be a departure from the prescribed percentage" (McCoy v. McCoy, 107 A.D.3d 857, 858, 967 N.Y.S.2d 137 [internal quotation marks omitted]; see Matter of Cassano v. Cassano, 85 N.Y.2d at 655, 628 N.Y.S.2d 10, 651 N.E.2d 878 ). In addition to providing a record explanation for deviating or not deviating from the statutory formula, a court "must relate that record articulation" to the factors set forth in Family Court Act § 413(1)(f) (Matter of Gluckman v. Qua, 253 A.D.2d 267, 270–271, 687 N.Y.S.2d 460 ; see Matter of Pittman v. Williams, 127 A.D.3d at 757, 7 N.Y.S.3d 227 ; Matter of De Souza v. Nianduillet, 112 A.D.3d 823, 823, 978 N.Y.S.2d 52 ). The factors include a consideration of the financial resources of the custodial and noncustodial parent, and the standard of living the child would have enjoyed if the parties had remained together (see Family Ct. Act § 413[1][f] ). These factors further the objectives of the CSSA, which include "the total income available to the parents and the standard of living that should be shared with the child" (Matter of Cassano v. Cassano, 85 N.Y.2d at 652, 628 N.Y.S.2d 10, 651 N.E.2d 878 [...