Ross v. Manley

• Decision Date: 14 January 2016
• Citation: 135 A.D.3d 1104,23 N.Y.S.3d 433
• Parties: In the Matter of Terry R. ROSS, Appellant–Respondent, v. Deborah S. MANLEY, Respondent–Appellant. (And Two Other Related Proceedings.).
• Court: New York Supreme Court — Appellate Division

135 A.D.3d 1104

23 N.Y.S.3d 433

In the Matter of Terry R. ROSS, Appellant–Respondent,

v.Deborah S. MANLEY, Respondent–Appellant.

(And Two Other Related Proceedings.).

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

Jan. 14, 2016.

Christopher A. Pogson, Binghamton, for appellant-respondent.

James A. Mack, Binghamton, for respondent-appellant.

Before: LATHINEN, J.P., GARRY, ROSE, LYNCH and DEVINE, JJ.

LYNCH, J.

Cross appeal from an order of the Family Court of Broome County (Connerton, J.), entered March 10, 2014, which, among other things, in three proceedings pursuant to Family Ct. Act article 4, upon renewal, denied the parties' objections to the orders of a Support Magistrate.

Petitioner (hereinafter the father) and respondent (hereinafter the mother) are the divorced parents of three children, one child who is now emancipated and twins (born in 1995). In 2003, Family Court issued an order that, among other things, established the father's child support obligation and the percentage share each party was obligated to contribute toward the children's uninsured medical and dental expenses. In May 2012, the father sought to modify the 2003 order, primarily on the basis that one of the twins was residing with him. In response, the mother filed a modification petition wherein she argued that the children's increased needs warranted an increase in the child support payable by the father. In January 2013, while the two modification petitions were pending, the mother filed a violation petition wherein she alleged that, since 2006, the father had willfully failed to pay for his share of the children's unreimbursed medical expenses.

The Support Magistrate heard the parties' modification petitions in February 2013 and, by findings of fact and order issued in March 2013, suspended the father's support obligation and apportioned uninsured health related expenses 60% to the mother and 40% to the father. Next, at a hearing on the mother's violation petition held in April 2013, the father sought and obtained permission from the Support Magistrate to file an answer wherein he asserted that the parties had an oral agreement that the mother would pay for all of the children's orthodontic and dental expenses that were not covered by the father's insurance. Family Court issued an order in June 2013 remanding the modification petition to the Support Magistrate to explain why the mother was not required to contribute towards the cost of the children's health insurance. The Support Magistrate resumed the hearing on the violation petition in June 2013 and, in July 2013, issued an order with findings of fact granting the mother's petition. On the same day, the Support Magistrate also issued an order with new findings of fact on the remanded modification petitions wherein the mother was directed to contribute 60% towards the cost of the children's health insurance. In August 2013, the father filed objections to both of the Support Magistrate's July 2013 orders and the mother objected to the order issued on her violation petition. In September 2013, Family Court ruled on all the objections by remanding the matter to the Support Magistrate for a new hearing, reasoning that all three proceedings should have been heard together. Thereafter, Family Court granted the mother's motion for leave to renew and, upon renewal, reviewed the parties' objections on the merits and denied them all. Both the mother and the father now appeal.

Initially, we reject the mother's claim that the father's appeal does not lie because the order on appeal was entered upon the father's default. Contrary to the mother's argument, the order was entered after Family Court considered the father's correspondence opposing the mother's motion. Moreover, it is not disputed that the father filed objections to each of the Support Magistrate's determinations, which were the subject of the challenged Family Court order.

The first substantive issue presented on this appeal is whether the Support Magistrate properly suspended each party's support obligation to the other.¹ Neither party disputes the Support Magistrate's conclusion that the parties shared custody of the twin daughters inasmuch as each party had custody of one child. That said, the Support Magistrate erred by simply cancelling out child support for both parties. The Child Support Standards Act (see Family Ct. Act § 413 [hereinafter CSSA] ) applies to shared and split custody cases (see Bast v. Rossoff, 91 N.Y.2d 723, 728, 675 N.Y.S.2d 19, 697 N.E.2d 1009 [1998] ; Cynoske v. Cynoske, 8 A.D.3d 720, 722, 778 N.Y.S.2d 105 [2004] ; Matter of Smith v. Smith, 197 A.D.2d 830, 831, 602 N.Y.S.2d 963 [1993] ). To properly calculate the amount of child support due from each parent, the Support Magistrate should have calculated 17% of the combined parental income up to the statutory cap and then determined each parent's respective obligation for the child not in his or her custody (see Matter of Ryan v. Ryan, 84 A.D.3d 1515, 1516, 923 N.Y.S.2d 754 [2011] ; Buck v. Buck, 195 A.D.2d 818, 818, 600 N.Y.S.2d 520 [1993] ). Accordingly, the matter must be remitted for a redetermination of the parties' respective support obligations. If the Support Magistrate decides that the result of such calculation is unjust or inappropriate, he or she may award a different amount after considering the requisite statutory factors (see Family Ct. Act § 413[1][f] ; Matter of Ryan v. Ryan, 84 A.D.3d at 1516, 923 N.Y.S.2d 754 ).

Next, the father contends that the Support Magistrate miscalculated each party's pro rata share of the uncovered medical expenses. We agree. Prior to making his determination, the Support Magistrate considered the father's 2013 income and the mother's 2012 income before determining that the expenses should be allocated 60%/40% payable by the mother and father, respectively. Generally, for purposes of the CSSA, "income" is the "gross [total] income as should have been or should be reported in the most recent federal income tax return" (Family Court Act § 413[1][b][5][i] ; see Matter of Fuller v. Fuller, 11 A.D.3d 775, 776, 783 N.Y.S.2d 671 [2004] ). Family Court has the discretion to consider current income figures (see Matter of Kellogg v. Kellogg, 300 A.D.2d 996, 996, 752 N.Y.S.2d 462 [2002] ) and, absent a demonstrated abuse of discretion, we will not disturb Family Court's determination to impute income to a parent (see Matter of D'Andrea v. Prevost, 128 A.D.3d 1166, 1167, 8 N.Y.S.3d 718 [2015] ). Here, the father presented both his 2012 W–2 form and a 2013 pay stub, the latter evincing a slight pay increase; the mother presented her 2012 W–2 form and testified that, in 2013, she expected to receive a health insurance buyout benefit consisting of periodic payments totaling $5,200. In our view, the record supports the Support Magistrate's determination to consider the father's 2013 income. However, we find no record support for the Support Magistrate's failure to include the 2013 health insurance buyout sum as income to the mother (see Family Ct. Act § 413 [1][b][5][iv][C] ). The allocation must be recalculated upon remittal.

Finally, both the mother and the father challenge Family Court's determination to confirm the Support Magistrate's July 2013 findings with regard to the father's obligation to pay his proportionate share of uncovered orthodontic expenses. By her violation petition, the mother claimed that the father did not pay his 46% share of such expenses as directed by the 2003 order. The father argued...