Perel v. Gonzalez

• Decision Date: 16 April 2013
• Citation: 105 A.D.3d 552,2013 N.Y. Slip Op. 02516,964 N.Y.S.2d 28
• Parties: In re Annette PEREL, Petitioner–Respondent, v. Daniel Michael GONZALEZ, Respondent–Appellant.
• Court: New York Supreme Court — Appellate Division

105 A.D.3d 552

964 N.Y.S.2d 28

2013 N.Y. Slip Op. 02516

In re Annette PEREL, Petitioner–Respondent,

v.Daniel Michael GONZALEZ, Respondent–Appellant.

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

April 16, 2013.

Port & Sava, Garden City (George S. Sava of counsel), for appellant.

Segal & Greenberg LLP, New York (Philip C. Segal of counsel), for respondent.

MAZZARELLI, J.P., DeGRASSE, ABDUS–SALAAM, MANZANET–DANIELS, CLARK, JJ.

Order, Family Court, New York County (Mary E. Bednar, J.), entered on or about March 7, 2012, which denied respondent's objection to the Support Magistrate's imputation to him of income based on the full market value of his employer-provided apartment, and bringing up for review an order, same court and Justice, entered on or about May 26, 2010, which denied his objections to the parts of the Support Magistrate's order of support that required him to pay child support in the amount of $476.49 per week, applied the child support percentage to the parties' combined income above the $130,000 statutory cap, and required respondent to pay his pro rata share of the child's private pre-kindergarten tuition, unanimously affirmed, without costs.

The court correctly determined the parties' income for purposes of calculating their basic child support obligations ( seeFamily Court Act § 413[1][b][3], [c]; Matter of Cassano v. Cassano, 85 N.Y.2d 649, 628 N.Y.S.2d 10, 651 N.E.2d 878 [1995] ). The record supports the Support Magistrate's determinations of respondent's income based on his 2008 annual gross income and the value of his employer-provided apartment and petitioner's income based on her 2008 annual gross income and her previous full-time employment as a concierge.

The Support Magistrate articulated the basis for applying the statutory percentage to the parties' income in excess of the $130,000 statutory cap ( see Matter of Cassano, 85 N.Y.2d at 654–655, 628 N.Y.S.2d 10, 651 N.E.2d 878). Citing Gina P. v. Stephen S., 33 A.D.3d 412, 414, 824 N.Y.S.2d 619 [1st Dept. 2006], she observed that the parties' combined income was not well in excess of the cap. Respondent contends that the child's needs were met by the statutory amount of the first $130,000 of combined parental income ( seeFamily Court Act 413[1][b][3][i] ). However, the record shows that the child's pre-school tuition and allocated housing cost alone—that is, excluding food, clothing and all other expenses—is almost equal to that amount.

The Support Magistrate properly declined to credit respondent with “extraordinary expenses” in connection with his visitation with the child. The Court of Appeals considered and expressly rejected any use in New York of the proportional offset formula in Bast v. Rossoff, 91 N.Y.2d 723, 728–730, 675 N.Y.S.2d 19, 697 N.E.2d 1009 [1998]. Thus, we decline to follow Matter of Carlino v. Carlino, 277 A.D.2d 897, 716 N.Y.S.2d 272 [4th Dept. 2000], as urged by respondent.

We reject respondent's arguments that income may not be imputed to him based on the value of his employer-provided apartment because the value of lodging furnished to an employee pursuant to employment is excluded from income under the Internal Revenue Code ( see26 USC § 119[a] ), the Supremacy Clause of the United States Constitution requires the value to be excluded as income for child support purposes, and it is unconstitutional because it conflicts with the Internal Revenue Code. The Family Court Act provides that “at the discretion of the court, the court may attribute or impute income from[ ] such other resources as may be...