Pittman v. Williams

• Decision Date: 01 April 2015
• Docket Number: 2013-06260, Index No. 16305/12.
• Citation: 2015 N.Y. Slip Op. 02766,7 N.Y.S.3d 227,127 A.D.3d 755
• Parties: In the Matter of Karen PITTMAN, respondent, v. Victor WILLIAMS, appellant.
• Court: New York Supreme Court — Appellate Division

127 A.D.3d 755

7 N.Y.S.3d 227

2015 N.Y. Slip Op. 02766

In the Matter of Karen PITTMAN, respondent

v.Victor WILLIAMS, appellant.

2013-06260, Index No. 16305/12.

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

April 1, 2015.

Orenstein & Orenstein, LLC (Keith S. Orenstein and Pollack, Pollack, Isaac & De Cicco, LLP, New York, N.Y. [Brian J. Isaac and Kenneth J. Gorman], of counsel), for appellant.

Fersch Petitti LLC, New York, N.Y. (Patricia Ann Fersch and Meryl A. Hoeft of counsel), for respondent.

RUTH C. BALKIN, J.P., SHERI S. ROMAN, JEFFREY A. COHEN and BETSY BARROS, JJ.

Opinion

In a custody and 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 Supreme Court, Kings County (Sweeting, Ct.Atty.Ref.), dated May 1, 2013, as, after a hearing, granted the mother's petition to the extent of directing him to pay child support in the sum of $6,246 per month, child support arrears in the sum of $56,214, child care expenses in the sum of $291.60 per week, and his pro rata share of the child's tuition at the Brooklyn Waldorf School.

ORDERED that the order is reversed insofar as appealed from, on the law and the facts, without costs or disbursements, the father is directed to pay child care expenses in the sum of $191.25 per week, and to pay the child's tuition at the Brooklyn Waldorf School for as long as the child remains in preschool, and the matter is remitted to the Supreme Court, Kings County, for a new determination, with all convenient speed, of the amount of child support and the amount of child support arrears in accordance herewith; in the interim, the father shall pay child support in the sum of $6,246 per month pending the new determination.

The Child Support Standards Act (Domestic Relations Law § 240[1–b] ; Family Ct. Act § 413 ) “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 ; see Holterman v. Holterman, 3 N.Y.3d 1, 11, 781 N.Y.S.2d 458, 814 N.E.2d 765 ; Matter of Cassano v. Cassano, 85 N.Y.2d 649, 653, 628 N.Y.S.2d 10, 651 N.E.2d 878 ; Matter of De Souza v. Nianduillet, 112 A.D.3d 823, 978 N.Y.S.2d 52 ; Matter of Byrne v. Byrne, 46 A.D.3d 812, 814, 848 N.Y.S.2d 319 ). Where combined parental income exceeds that “statutory cap” (Matter of Parsick v. Rubio, 103 A.D.3d 898, 900, 962 N.Y.S.2d 251 )—in this case, $136,000 (see Social Services Law § 111–i[2][b], [c] )—“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 De Souza v. Nianduillet, 112 A.D.3d at 823, 978 N.Y.S.2d 52 ; Matter of Lynn v. Kroenung, 97 A.D.3d 822, 823–824, 949 N.Y.S.2d 144 ). However, there must be “some record articulation of the reasons for the court's choice ... 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 ; Finke v. Finke, 15 A.D.3d 615, 618, 790 N.Y.S.2d 224 ). The court's decision “ ‘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, quoting Wagner v. Dunetz, 299 A.D.2d 347, 350–351, 749 N.Y.S.2d 545 ; see Matter of Cassano v. Cassano, 85 N.Y.2d at 655, 628 N.Y.S.2d 10, 651 N.E.2d 878 ; Matter of De Souza v. Nianduillet, 112 A.D.3d at 823, 978 N.Y.S.2d 52 ). “In addition to providing a record articulation for deviating or not deviating from the statutory formula, a court must relate that record articulation to the statutory factors” (Matter of Gluckman v. Qua, 253 A.D.2d 267, 270–271, 687 N.Y.S.2d 460 ; see

Matter of

De Souza v. Nianduillet, 112 A.D.3d at 823, 978 N.Y.S.2d 52 ; Moschetti v. Moschetti, 277 A.D.2d 838, 840, 716 N.Y.S.2d 802 ).

For the purposes of making a child support award, the Supreme Court properly determined that the parties' combined parental income was $489,937, based on the parties' earnings in 2012, and that the father had earned 90% of that sum. However, in determining the amount of child support, the court failed to articulate its reasons for applying the statutory percentage of 17% to the combined parental income over the statutory cap of $136,000. Therefore, the matter must be remitted to the Supreme Court, Kings County, for a new determination in this regard, and the Supreme Court must articulate its reasons for the new determination.

Pursuant to Family Court Act § 413(c)(4), “where the custodial parent is working ... and incurs child care expenses as a result thereof, the court shall determine reasonable child care expenses and such child care expenses, where incurred, shall be prorated [and] [e]ach parent's pro rata share shall be separately stated and added” to the parent's basic child support obligation (see Matter of Scarduzio v. Ryan, 86 A.D.3d 573, 574, 926 N.Y.S.2d 909 ). Here, the Supreme Court properly determined that the mother incurred $425 in child care expenses each week. However, the court erred in calculating the amount of child care expenses to be paid by the father. Since the child care provider cared for both the subject...