Rubin v. Salla

• Citation: 2013 N.Y. Slip Op. 02681,964 N.Y.S.2d 41,107 A.D.3d 60
• Parties: Mara RUBIN, Plaintiff–Respondent, v. Anthony Della SALLA, Defendant–Appellant. Mara Rubin, Plaintiff–Appellant, v. Anthony Della Salla, Defendant–Respondent.
• Decision Date: 18 April 2013
• Court: New York Supreme Court — Appellate Division

107 A.D.3d 60

964 N.Y.S.2d 41

2013 N.Y. Slip Op. 02681

Mara RUBIN, Plaintiff–Respondent,

v.Anthony Della SALLA, Defendant–Appellant.

Mara Rubin, Plaintiff–Appellant,

v.Anthony Della Salla, Defendant–Respondent.

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

April 18, 2013.

Kasowitz, Benson, Torres & Friedman LLP, New York (Eleanor B. Alter, Maxine R. Shapiro and Matthew Hrutkay of counsel), for Anthony Della Salla, appellant/respondent.

Advocate & Lichtenstein, LLP, New York (Jason A. Advocate of counsel), for Mara Rubin, respondent/appellant.

DAVID FRIEDMAN, J.P., ROLANDO T. ACOSTA, DIANNE T. RENWICK, ROSALYN H. RICHTER, NELSON S. ROMÁN, JJ.

RICHTER, J.

In this appeal, we are asked to decide whether a parent who has primary physical custody of a child in a shared custody arrangement where the time is not equally divided can be ordered to pay child support to the other parent. We conclude that based on the plain language of the Child Support Standards Act, its legislative history, and its interpretation by the Court of Appeals, a custodial parent who has the child a majority of the time cannot be directed to pay child support to a noncustodial parent.

Plaintiff Mara Rubin (the mother) and defendant Anthony Della Salla (the father) are the unmarried parents of a 9–year–old son. The mother graduated from college with a degree in speech pathology and child development. After college, she worked as a paralegal, and then attended law school for two years. She dropped out of law school and worked in the real estate field for six years. She married in 1995, had a daughter in 1997 and was subsequently divorced. The father attended college on a football scholarship and studied finance and real estate. After college, he entered the insurance field and became a successful businessman, founding and owning a title insurance company. He was married for 22 years and has three grown children. His marriage ended in divorce in 1995.

The parties, who never married, met in the early 1990s and started their relationship as platonic friends. They became romantically involved in 1998, but did not move in together. In November 2003, the mother gave birth to the couple's son. After the child was born, the mother and father continued to live separately. The mother lived with the child and her daughter in an apartment on Manhattan's Upper East Side. The father had an apartment in midtown Manhattan and a house in New Jersey.

The parties' relationship ended in 2007. Although the child lived with his mother, he continued to spend time with his father. In the beginning of 2007, the father met his current girlfriend, and by that fall, they were in a committed relationship. The time the father spent with his son progressively increased after he began his relationship with his girlfriend. In May 2008, the parties agreed that the child would reside with the father every weekend he was not traveling. At that point, the child began to spend, on average, two out of every three weekends with his father. In the summer of 2008, the child went on a two-week vacation with the father and his girlfriend. In November 2008, the father and his girlfriend moved together into an apartment, where the child has his own bedroom.

At about the same time, school officials informed the father that the mother was habitually late in getting the child to school. The father proposed that he take the child to school every day, and the mother agreed. Each morning thereafter, except when traveling on business, the father would pick his son up from the mother's apartment and timely transport him to school. During the 2008–2009 school year, the child spent most weekends with his father, as well as Thanksgiving, Christmas and nine days of his spring break. The father told the child that he and his girlfriend were expecting a baby, and their daughter was born in April 2009. After the daughter was born, the father significantly decreased his work travel and was available to spend more time with his son.

Despite her college degree and experience in real estate, the mother has not been employed since 2001. Although she claims that the father demanded that she not work, she provides no clear reason for her failure to find employment after the relationship ended in 2007. Nor has the court below made any finding that the mother is physically or mentally incapable of working.

In April 2009, the mother commenced this action seeking sole legal and residential custody of the child, and an order compelling the father to pay child support.¹ The father also sought primary custody of the child. On May 27, 2011, after a ten-day trial, the court rendered its decisionon custody, and an order was entered on July 19, 2011. The court awarded primary physical custody to the father during the school year, with the mother having parenting time on alternate weekends (from Friday after school to Monday morning) and every Thursday overnight. During the summer, the schedule was reversed and the child would live primarily with the mother, but would spend Thursday overnights and alternate weekends with the father. The mother would also have the child each midwinter school break, and the other school breaks were evenly divided. In addition, each parent was given two weeks with the child during the summer. With respect to legal custody, the court awarded the father decision-making authority, after consultation with the mother, over educational and medical issues. The mother was given authority, after consultation with the father, over decisions on summer and extracurricular activities, and religion.

The mother appeals from the custody order, arguing that the court erred in changing the parties' existing custodial arrangement. Custody disputes are resolved based upon a determination of the child's best interests, made after review of the totality of the circumstances ( Eschbach v. Eschbach, 56 N.Y.2d 167, 171–172, 451 N.Y.S.2d 658, 436 N.E.2d 1260 [1982] ). Primary among such considerations are the ability to provide for the child's emotional and intellectual development, the quality of the home environment and the parental guidance provided ( Louise E.S. v. W. Stephen S., 64 N.Y.2d 946, 947, 488 N.Y.S.2d 637, 477 N.E.2d 1091 [1985] ). In reviewing custody issues, deference is to be accorded to the determination rendered by the factfinder, unless it lacks a sound and substantial basis in the record ( David J.B. v. Monique H., 52 A.D.3d 414, 415, 861 N.Y.S.2d 330 [1st Dept. 2008] ).

Guided by these principles, we find that the trial court fashioned an appropriately tailored schedule that enables the child to benefit from both the stability and structure given by the father and the maternal nurturing and affection provided by the mother. Although the mother is warm and loving with the child, the evidence at trial showed that her life is in a constant state of turmoil. She lacks appropriate boundaries, has made questionable choices in her interpersonal relationships, is often overwhelmed by routine stress, and has had repeated problems in getting the child to school on time. These factors support the trial court's view that the father should be the primary custodial parent during the school year, when the child, who has learning disabilities, most needs structure and stability.

The record also provides a sound basis for the trial court's determination that the father should have decision-making authority over educational and medical issues. With respect to education, the mother has failed to get the child to school on time, did not arrange for a tutor in a timely fashion and has increasingly failed to follow through on important educational issues. As for health matters, the mother neglected to get dental care for the child until he was five years old, and has been remiss in addressing some of her daughter's health issues. In contrast, the father has exhibited increased involvement in both areas, has followed the recommendations of education professionals and has taken significant steps in addressing the child's needs. Furthermore, in light of the child's learning problems and the resulting overlap between educational and medical issues, it makes better sense to have one parent in charge of both areas.

Following the custody decision, the father moved for summary judgment dismissing the mother's cause of action for child support. The father argued that, by the terms of the custody order, he was the custodial parent because the child would spend the majority of the year with him. Thus, the father argued that, as a matter of law, the court could not order him to pay child support to the mother, the noncustodial parent. The father's motion included a calendar covering July 2011 to June 2012, which showed that, as per the custody decision, the father had 204 overnights with the child, and the mother had 161. A similar analysis was done for the July 2012 to June 2013 time period, showing 206 overnights with the father and 159 with the mother. These custodial periods equate to the child being with the father 56% of the time and with the mother 44% of the time.

In her response, the mother did not challenge the father's calculation of the number of overnights each parent had with the child. In fact, she conceded that the child would reside with the father “most of the time,” that the father was the “de-facto custodial parent,” and that she may not be the “custodial parent” for purposes of the Child Support Standards Act (CSSA). She also agreed that under a “strict application” of the CSSA, the father could not be ordered to pay child support. Nevertheless, the mother argued that she is entitled to an award of child support because any other result would be unjust and inappropriate.

In an order entered March 8, 2012, the court denied the father's summary judgment motion, finding that an award of child support to the mother was not precluded. The court reasoned that because the parties ...