Smisek v. DeSantis

• Citation: 209 A.D.3d 142,174 N.Y.S.3d 139
• Decision Date: 21 September 2022
• Docket Number: 2021–06495,Docket No. F-984-20
• Parties: In the Matter of Aileen T. SMISEK, appellant, v. Michael V. DESANTIS, respondent.
• Court: New York Supreme Court Appellate Division

209 A.D.3d 142
174 N.Y.S.3d 139

In the Matter of Aileen T. SMISEK, appellant,
v.
Michael V. DESANTIS, respondent.

2021–06495
Docket No. F-984-20

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

Argued—May 12, 2022
September 21, 2022

Law Offices of Seidner & Associates, P.C., Garden City, NY (Matthew S. Seidner of counsel), for appellant.

Law Offices of Jonathan E. Edwards, P.C., Garden City, NY, for respondent.

COLLEEN D. DUFFY, J.P., ANGELA G. IANNACCI, REINALDO E. RIVERA, JOSEPH A. ZAYAS, JJ.

OPINION & ORDER

IANNACCI, J.

174 N.Y.S.3d 140

209 A.D.3d 143

This appeal concerns an award of child support under circumstances in which the parents have shared physical custody of their children. In adjudicating a child support petition filed by the mother of the subject children in the present case, the Support Magistrate and the Family Court agreed with the father's contention that the mother could not be awarded child support because a strict counting of the parties’ custodial overnights with the children rendered him the custodial parent. We conclude, to the contrary, that the court-ordered custody arrangement in this case splits the parents’ physical custody of the children in such a manner that "neither can be said to have physical custody of the children for a majority of the time" ( Baraby v. Baraby, 250 A.D.2d 201, 204, 681 N.Y.S.2d 826 ). In such circumstances, the parent having the higher income and thus bearing the greater pro rata share of the child support obligation, here, allegedly, the father, is deemed the noncustodial parent for child support purposes (see Matter of Conway v. Gartmond, 144 A.D.3d 795, 41 N.Y.S.3d 90 ;

209 A.D.3d 144

Baraby v. Baraby, 250 A.D.2d at 204, 681 N.Y.S.2d 826 ). We therefore reverse the order, grant the mother's objections, and remit the matter to the Family Court, Nassau County, for further proceedings on the mother's petition for child support.

The parties, who were never married to each other, have two children together, born in 2010 and 2013, respectively. In 2017, the mother moved out of the home in which the parties and the children had been living, and petitioned for custody of the children. At that time, the mother worked as a dance instructor in a dance studio in which she had a partial ownership interest. The father was a partner in a law firm. After a trial, the Family Court issued a final order of custody awarding the parties joint legal custody and shared parenting time.

The parenting time schedule in the final order of custody was as follows: during the months of September through June, the father had parenting time with the children from Sunday at 8:00 p.m. through Wednesday at 9:00 a.m., as well as on alternating weekends from Friday at 9:00 a.m. through Sunday at 8:00 p.m. The mother had parenting time during those months from Wednesday at 9:00 a.m. through Friday at 9:00 a.m., and alternating weekends from Friday at 9:00 a.m. through Sunday at 8:00 p.m. During the months of July and August, the mother had parenting time from Monday at 9:00 a.m. through Thursday at 9:00 a.m., as well as alternating weekends from Thursday at 9:00 a.m. through Monday at 9:00 a.m. The father had parenting time during those months on alternating weekends from Thursday at 9:00 a.m. through Monday at 9:00 a.m., as well as one period of seven consecutive days. The parties alternated custody on all other school breaks and holidays. In its decision after trial, which set forth the same parenting time schedule, the Family Court stated that it was giving "residential custody" to the father "solely for the purpose of determining the children's school district."

174 N.Y.S.3d 141

The mother subsequently filed a petition against the father for child support. The father moved pursuant to CPLR 3211(a) to dismiss the petition, contending that he was considered the custodial parent for child support purposes because, pursuant to the custody order, he enjoyed more custodial overnights with the children. Therefore, the father asserted, he could not, as a matter of law, be directed to pay child support to the mother. In opposition, the mother argued that while the father had more custodial overnights, she had a greater number of custodial days and hours. In any event, the mother maintained,

209 A.D.3d 145

the parenting time schedule set by the Family Court was "as close to exactly 50/50 as the [c]ourt could devise" taking into account issues concerning school. As such, the mother contended, the rule pertaining where neither parent has custody for a majority of the time, which compares the parties’ pro rata share of the child support obligation, should be applied.

The Support Magistrate, examining the relevant law, perceived a split of authority between the Appellate Division, First and Third Judicial Departments, on the one hand, and the Appellate Division, Fourth Judicial Department, on the other, with no precedent from this Court, as to the method of determining which parent was the custodial parent for purposes of child support in a shared custody arrangement. Following the First Department's decision in ( Rubin v. Della Salla , 107 A.D.3d 60, 964 N.Y.S.2d 41 ), the Support Magistrate concluded that the parent who has the greatest number of custodial overnights is the parent considered to have custody of the child the majority of the time and, therefore, is the custodial parent for child support purposes. Since the father had more custodial overnights, the Support Magistrate granted the father's motion pursuant to CPLR 3211(a) to dismiss the mother's petition for child support and dismissed the proceeding.

The mother filed objections to the Support Magistrate's order, arguing for a more flexible approach that would award child support to the spouse with the lower income where the parties enjoyed approximately equal parenting time. The Family Court, however, agreed with the Support Magistrate, and denied the mother's objections. The mother appeals.

The Child Support Standards Act (hereinafter the CSSA) sets forth a three-step method for determining the appropriate amount of support and each parent's respective share of that obligation (see Domestic Relations Law § 240[1–b][c] ; Family Court Act § 413[1][c] ; Kaufman v. Kaufman, 189 A.D.3d 31, 71–72, 133 N.Y.S.3d 54 ). The CSSA requires the court to direct "the non-custodial parent to pay his or her pro rata share of the basic child support obligation," unless it finds that amount to be "unjust or inappropriate" based upon a consideration of statutory factors (commonly referred...