Spano v. Spano

• Decision Date: 16 January 2019
• Docket Number: 2018–03840,Docket Nos. F–7474–17/17A, F–7474–17/17B
• Parties: In the Matter of Francis SPANO, Appellant, v. Jade SPANO, Respondent. (Proceeding No. 1) In the Matter of Jade Spano, Respondent, v. Francis Spano, Appellant. (Proceeding No. 2)
• Court: New York Supreme Court — Appellate Division

168 A.D.3d 857

92 N.Y.S.3d 300

In the Matter of Francis SPANO, Appellant,

v.Jade SPANO, Respondent.

(Proceeding No. 1)

In the Matter of Jade Spano, Respondent,

v.Francis Spano, Appellant.

(Proceeding No. 2)

2018–03840

Docket Nos. F–7474–17/17A, F–7474–17/17B

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

Submitted—December 6, 2018

January 16, 2019

Ian S. Mednick, Hauppauge, NY, for appellant.

ALAN D. SCHEINKMAN, P.J., REINALDO E. RIVERA, SYLVIA O. HINDS–RADIX, BETSY BARROS, JJ.

DECISION & ORDER

ORDERED that the order dated March 14, 2018, is modified, on the law, by deleting the provisions thereof denying the father's objections to so much of the order dated January 16, 2018, as directed him to pay 100% of the child care expenses, extraordinary expenses, extracurricular expenses, and unreimbursed health-related expenses and health insurance expenses of the parties' children, and granted the mother's enforcement petition directing him to pay certain child support arrears, and substituting therefor provisions granting those objections, and directing the father to pay 90% of the child care expenses, extraordinary expenses, extracurricular expenses, and unreimbursed health-related expenses and health insurance expenses of the parties' children; as so modified, the order dated March 14, 2018, is affirmed insofar as appealed from, without costs or disbursements, the order dated January 16, 2018, is modified accordingly, and the matter is remitted to the Family Court, Suffolk County, for a new determination of the amount of the father's child support arrears and arrears of other payments relating to the children, if any, in accordance herewith.

The parties, who have two children together, were divorced by a judgment of divorce entered September 10, 2015. The parties executed a stipulation of settlement dated May 15, 2015, which was incorporated but not merged into the judgment of divorce, in which they agreed, inter alia, to share joint custody of the children, with the mother having physical custody. The mother waived any right to maintenance, but was granted exclusive use and occupancy of the marital residence for a period of two years from the date the agreement was executed. The parties agreed to opt out of the basic child support obligations under the Child Support Standards Act (hereinafter the CSSA) (see Family Ct. Act § 413 ), and that the father would pay the sum of $4,500 per month for child support until two years had passed and the mother's period of exclusive use and occupancy of the marital residence had ended, at which time "the child support shall be re-calculated in accordance with the Child Support Standards Act," and "child care and all other extras shall be revisited for pro rata share." The reasons for the deviation from the CSSA were stated as "the limited financial resources of the custodial parent for the time at which she attends college to secure a teaching degree, coupled with the ability of the non-custodial parent to provide an increased amount of support."

At the conclusion of the two-year period, the father filed a petition to enforce the child support provisions of the stipulation, seeking a recalculation of his child support obligation in accordance with the CSSA. The mother filed a petition to enforce the child support provisions of the stipulation, alleging that the father was in arrears. Following a hearing, in an order dated January 16, 2018, the Support Magistrate granted the father's enforcement petition and directed the father to pay $880 weekly in child support, 50% of the children's college education expenses, and 100% of the child care expenses, extraordinary expenses, extracurricular expenses, and unreimbursed health-related expenses and health insurance expenses of the children. The Support Magistrate also granted the mother's enforcement petition and directed the father to pay certain child support arrears. The father filed timely objections to the Support Magistrate's order, which the Family Court denied in an order dated March 14, 2018. The father appeals from the order dated March 14, 2018.

The CSSA "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 Eagar v. Suchan , 128 A.D.3d 961, 962, 9 N.Y.S.3d 628 ). When the parties' combined income is more than the statutory cap—in this case, $143,000 (see Social Services Law § 111–i[2][b], [c] )—"the court has the discretion to cap the support obligation at an amount based on the statutory cap or order child support above the statutory cap, based on the factors set forth in Family Court Act § 413(1)(f) and/or the child support percentage set forth in Family Court Act § 413(1)(c)(3)" ( Matter of Santman v. Schonfeldt , 159 A.D.3d 914, 915, 70 N.Y.S.3d 79 ; see Matter of Cassano v. Cassano , 85 N.Y.2d at 654, 628 N.Y.S.2d 10, 651 N.E.2d 878 ; Matter of Peddycoart v. MacKay , 145 A.D.3d 1081, 1084, 45 N.Y.S.3d 135 ). Since the statute "explicitly vests discretion in the court and [because] the exercise of discretion is subject to review ... some record articulation of the reasons for the court's choice to apply the percentage is necessary 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 ; see Matter of Eagar v. Suchan , 128 A.D.3d at 962, 9 N.Y.S.3d 628 ; Matter of Wienands v. Hedlund , 305 A.D.2d 692, 693, 762 N.Y.S.2d 90 ; Rohrs v. Rohrs , 297 A.D.2d 317, 318, 746 N.Y.S.2d 305 )....