Rush v. Rush

• Decision Date: 23 October 1991
• Citation: 579 N.Y.S.2d 552,152 Misc.2d 823
• Parties: In the Matter of the Commissioner of Social Services of the City of New York as Assignee of Moses RUSH, * Petitioner, v. Catherine RUSH, * Respondent. Proceeding One. In the Matter of the Commissioner of Social Services of the City of New York as Assignee of Maria ANTOINETTE, * Petitioner, v. Milton BURLE, * Respondent. Proceeding Two. In the Matter of the Commissioner of Social Services of the City of New York as Assignee of Maria ALEXANDER, * Petitioner, v. Nicolas ALEXANDER, * Respondent. Proceeding Three. Family Court, City of New York, New York County
• Court: New York Family Court

Page 552

579 N.Y.S.2d 552

152 Misc.2d 823

In the Matter of the Commissioner of Social Services of the

City of New York as Assignee of Moses RUSH, ^* Petitioner, v. Catherine RUSH, ^* Respondent. Proceeding One.

In the Matter of the Commissioner of Social Services of the

City of New York as Assignee of Maria ANTOINETTE, ^* Petitioner, v. Milton BURLE, ^* Respondent. Proceeding Two.

In the Matter of the Commissioner of Social Services of the

City of New York as Assignee of Maria ALEXANDER, ^* Petitioner, v. Nicolas ALEXANDER, ^* Respondent.

Proceeding Three.

Family Court, City of New York,

New York County.

Oct. 23, 1991.

O. Peter Sherwood, Corp. Counsel by Barry Ensminger, Special Asst. Corp. Counsel, New York City (Charles Spinardi, of counsel, proceeding one; Anil Shah, of counsel, proceeding two; Robin Cohen, of counsel, proceeding three), for Com'r of Social Services of the City of New York, petitioner/assignee.

Catherine Rush, pro se.

Simonson and Cohen, P.C., Staten Island (Theresa A. Granite, of counsel), for respondent in proceeding two.

Nicholas Alexander, pro se.

DECISION AND ORDER

JEFFRY H. GALLET, Judge.

In proceeding one, respondent objects to an order of support (James Weigert, H.E.). The order is reversed and the matter is remanded for further proceedings before Hearing Examiner Weigert.

In proceeding two, petitioner objects to an order of support (Ruben M. Garcia, H.E.). The order is reversed and the matter is remanded for further proceedings before Hearing Examiner Garcia.

In proceeding three, petitioner objects to an order of support (Judith S. Croiter, H.E.). The objections are denied and the order of support is affirmed.

THE ISSUE

Each of these proceedings involves an interpretation of the term "financial resources" found in Family Court Act § 413(1)(f) and Domestic Relations Law § 240(1-b)(f). ¹ The basic child support rule in this state is that each parent is responsible for the support of his/her minor children. F.C.A. § 413(1)(a). The amount of that support is to be set in accordance with the detailed formula found in Family Court Act § 413. Subsection (1)(f) of Section 413 provides an exception to the application of the child support formula. It sets forth ten factors to be considered in determining whether or not the application of the child support formula would be "unjust or inappropriate."

Seven of those factors, the child's special needs, aptitudes and health, the standard of living the child would have enjoyed had the household not been dissolved, the tax consequences, the non-monetary contributions of the parents, the educational needs of the parents, a comparison of the gross incomes of the parent and visitation expenses when the child is not receiving public assistance, are relatively clear. Subsection (1)(f)(10), permits a court to consider any other factors it considers relevant to the case before it.

Subparagraphs 1 and 8 of Section 413(1)(f) provide that a court may consider the financial resources of the parents and the child and the needs of the non-custodial parent's children for whom he/she is providing support not mandated by court order or written agreement. However, a court may only consider those needs if the financial resources available to the non-custodial parent's other children are less than the resources available to support the children before the court. The statute gives neither

a definition of, nor a formula to calculate, the "financial resources."

DISCUSSION

Judges and Hearing Examiners have been grappling with the problem of support for children not then before the court since the passage of the child support guidelines. Indeed, courts and legislatures across the nation have been struggling with this issue in its many manifestations. See Takas, The Treatment of Multiple Family Cases Under State Child Support Guidelines, U.S. Department of Health and Human Services (1991). The problem is most difficult to address in cases where one or more of the children involved is receiving public assistance. In such cases, even where the non-custodial parent is employed, we frequently find that there are not sufficient resources to adequately support all of the children involved. See for example Matter of Steuben County Department of Social Services v. James, 171 A.D.2d 1023, 569 N.Y.S.2d 32 (4th Dept., 1991); Matter of Commissioner of Social Services v. Michael F., --- Misc.2d ----, 574 N.Y.S.2d 492 (Fam.Ct., N.Y.Cty.1991); Matter of Commissioner of Social Services v. Jose E., N.Y.L.J., 7/18/90, p. 20, col. 6, (Fam.Ct., N.Y.Cty.1990).

In Jose E., supra., the Court noted that the amount of a support order for a child may be greater or smaller depending on whether the child's mother gets to the courthouse before or after the mother of a half-sibling. The Court was able to resolve the problem by directing that the cases of the half-siblings be tried together so that an appropriate result would occur. It did not have to address the problem of having one child at bar while another is supported voluntarily. ²

It is important to note that most children in this country are supported by their parents without benefit of a written agreement or court order. Some children live with both parents who support them as necessary and others are supported as a result of agreements between their parents. That practice should be encouraged.

Under the current statutory scheme, both what is to be considered "resources" and whether or not strict adherence to the guidelines would be "unjust or inappropriate" must be made on a case by case basis. However, certain rules and considerations can be universally applied.

RESOURCES

"Resources," as the term is used in Family Court Act § 413(1)(f)(1) and (8), is a broad term, encompassing considerably more than the term "income." Although the term does not lend itself to easy definition, it includes everything available to support the child. As the Court, referring to the pre-child support guidelines caselaw, held in Commissioner of Social Services v. Michael F., supra.:

There is ... a substantial body of law to be used in determining the resources available to custodial parents, non-custodial parents and the various children involved. (citations omitted)

Appellate Courts have held that resources need not be based on an enforceable contract and regular monthly gifts from a relative would be included. Blickstein v. Blickstein, 99 A.D.2d 287, 472 N.Y.S.2d 110 (2nd Dept., 1984), app. dism., 62 N.Y.2d 802 (1984). In addition, non-income producing assets and the ability to draw income and the principal from a trust may be included. Kay v. Kay, 37 N.Y.2d 632, 376 N.Y.S.2d 443, 339 N.E.2d 143 (1975); Scheuer v. Scheuer, 144 A.D.2d 225, 534 N.Y.S.2d 537 (3rd Dept., 1988). A court may also consider a paramour's resources or those of the custodial parent's spouse. Farley v. Farley, 114 A.D.2d 703, 494 N.Y.S.2d 546 (3rd Dept., 1985); Boden v. Leccese, 83 A.D.2d 636, 441 N.Y.S.2d 539 (2nd Dept., 1981).

Indeed, one of the resources may be the ability to earn of the non-custodial parent,

                that person's spouse or another person living with the non-custodial parent.   See Hickland v. Hickland, 39 N.Y.2d 1, 382 N.Y.S.2d 475, 346 N.E.2d 243 (1976) cert. den., 429 U.S. 941, 97 S.Ct. 357, 50 L.Ed.2d 310 (1976);  Doscher v. Doscher, 80 A.D.2d 945, 438 N.Y.S.2d 28 (3rd Dept.1981) aff'd, 54 N.Y.2d 655, 442 N.Y.S.2d 507, 425 N.E.2d 896 (1981)
                

PUBLIC ASSISTANCE

There is considerable controversy as to whether public assistance payments either allocated for the child or to the custodial parent's household should be considered resources. The Commissioner argues, in essence, that public assistance is neither income nor money to which the child is entitled if the child's non-custodial parent has any resources. By that logic, the Commissioner concludes that a custodial parent's resources are zero when a child is on public assistance and that the exception of subsection "8" can never apply to public assistance cases because the non-custodial parent's available resources for other children is invariably more than nothing.

The Commissioner is not correct. The caselaw in this state holds that monies received or available to the child from persons who have no legal obligation to support the child or a parent can be considered in setting child support amounts. Blickstein v. Blickstein, supra.; Farley v. Farley, supra.; Boden v. Leccese, supra.; Felisa L.D. v. Allen M., 107 Misc.2d 217, 433 N.Y.S.2d 715 (Fam.Ct., Bronx Cty., 1980).

The Commissioner is no more than the assignee of the child's custodian. If the child's custodian was suing for support, all sources of support available to the custodial household would be considered. That does not change when the Commissioner sues as the custodian's assignee. The purpose of the resources calculation is to determine whether or not all of the children involved are properly supported. That can only be determined by considering all available sources of support. To do otherwise might very well lead to an unjust result, unintended by the legislature. Such a result would be an unacceptable interpretation of the legislature's child support scheme. See Zappone v. Homes Ins. Co., 55 N.Y.2d 131, 447 N.Y.S.2d 911, 432 N.E.2d 783 (1982); NY Bankers Assoc. v. Albright, 38 N.Y.2d 430, 381 N.Y.S.2d 17, 343 N.E.2d 735 (1975).

The legislature has set the...