Stanton v Kelley
Annotate this CaseDecided on March 3, 2008
Family Court, Essex County
Reilly E. Stanton, Petitioner,
against
Matthew J. Kelley, Respondent.
F-000683-06/07A
Gregory LaDuke, Esq., Lake Placid, New York, for petitioner.
Matthew J. Kelley, Bonaire, Georgia, pro se.
Richard B. Meyer, J.
Objections filed by Respondent Matthew J. Kelley (Kelley), the non-custodial parent, to an order of the Support Magistrate (Heussi) in favor of Petitioner Reilly E. Stanton (Stanton) modifying a child support order of $25 per week for birth expenses by an additional $62 per week for current child support of the parties' one-year-old son. Specifically, Kelley contends that the Support Magistrate's findings are inaccurate and fail to reflect his current financial situation, including his other confinement and support obligations in Essex and Saratoga counties, respectively. [*2]
The Child Support Standards Act (CSSA) requires all child support determinations to be based upon the income (FCA §413[1][b][5][i]-[vi]) of each parent less certain statutory deductions (FCA §413[1][b][5][vii][A]-[H]), the net amounts of which are then added together to arrive at the parties' "combined parental income" (FCA §413[1][b][4]). A party's income generally consists of his/her gross income "as should have been or should be reported in the most recent federal tax return" (FCA §413[1][b][5][I]), and may be calculated based upon the party's most recent pay stubs (see Fuller v. Fuller, 11 AD3d 775, 783 NYS2d 671). A court is not bound by the income reported in an individual's income tax return (see Askew v. Askew, 268 AD2d 635, 700 NYS2d 594; Matter of Liebman v Liebman, 229 AD2d 778, 645 NYS2d 581; Matter of Smith v Smith, 197 AD2d 830, 602 NYS2d 963), and has considerable discretion to use other resources available to a parent (FCA §413[1][b][5][iv]) in determining a child support award (Burtchaell v. Burtchaell, 42 AD3d 783, 840 NYS2d 449) including"money, goods or services provided by friends and relatives" (FCA § 413[1][b]5][iv][D]; see also Collins v. Collins, 241 AD2d 725, 659 NYS2d 955; Perry v. Pica, 22 AD3d 903, 802 NYS2d 772). The CSSA requires downward adjustments of each party's income for certain items of expense and income (FCA §413[1][b][5][vii][A]-[H]), such as FICA (medicare and social security), unreimbursed employee business expenses, alimony and maintenance actually paid, income from public assistance and supplemental social security, and child support"actually paid pursuant to a court order . . . on behalf of any child for whom the parent has a legal duty of support and who is not subject to the instant action" (FCA §413[1][b][5][vii][D]).
Following these adjustments, the parties' respective incomes are added together to arrive at the "combined parental income" (FCA §413[1][b][4] and [5]) upon which is calculated the "basic child support obligation" (FCA§413[1][b][1] and [1][f]), consisting not only of child support but also child care expenses incurred by the custodial parent (FCA §413[1][c][4] and [6]), apportionment of "future reasonable health care expenses of the child not covered by insurance" (FCA §413[1][c][5]), and under appropriate circumstances educational expenses "in the best interests of the child . . . as justice requires" (FCA §413[1][c][7]). The amount of child support is determined by multiplying the combined parental income (up to $80,000) by the CSSA child support percentage applicable for the number of children of the parties (FCA §413[1][b][3]), the result of which is then "prorated in the same proportion as each parent's income is to the combined parental income" (FCA §413[1][c][1]-[3]) to arrive at the non-custodial parent's child support obligation. Each parent's pro rata share of the combined parental income is also used to apportion"each parent's share of future reasonable health care expenses of the child(ren) not covered by insurance" (FCA §413[1][c][5]), as well as child care expenses. "[W]here the custodial parent is working, or receiving elementary or secondary education, or higher education or vocational training which the court determines will lead to employment" (FCA §413[1][c][4]), each parent's pro rata share of those expenses must be "separately stated and added to the" (id.) child support amount. If the custodial parent "is seeking work and incurs child care expenses as a result thereof" (FCA §413[1][c][6]), "[t]he non-custodial parent's share . . . shall be separately stated and paid in a manner determined by the court" (id.).
At the hearing before the Support Magistrate held on November 30, 2007, Kelley's income [*3]for child support purposes was determined to be $18,901.72. Kelley testified that since early September 2007 he has been working 35-40 hours per week as a waiter, earning $7.25 per hour plus tips. He also admitted to living with his parents without contributing room and board. Instead of relying solely upon Kelley's 2006 tax return which reported gross income of $13,702, the Support Magistrate used the wages and tips reported in Kelley's most recent pay stubs to calculate Kelley's annual income as $18,193.76. Due to Kelley's living situation, additional income was imputed to Kelley in the amount of $6,000 annually ($500 per month), which resulted in total income of $24,193.76. This figure was properly reduced by a total of $5,292.04 - $1,392.04 in FICA taxes (medicare and social security) and $3,900.00 in court-ordered current child support actually paid by Kelley for his other child at the rate of $75.00 per week (FCA §413[1][b][vii][D] and [H]).
The Support Magistrate did not abuse his discretion in using Kelley's recent pay stubs to calculate his annual income (see Fuller v. Fuller, supra ; Askew v. Askew, supra ), or in imputing income to Kelley since a court may attribute or impute income from other resources "so long as the court articulates the bases for the imputation and its calculations are supported in the record" (Pulver v. Pulver, 4 AD3d 1315, 1318, 837 NYS2d 369, 373). "[T]he fact finder's determination concerning imputation - which is almost always based on the resolution of credibility questions - is given considerable deference" (Askew v. Askew, supra at 636, 700 NYS2d at 596). Kelley's objection that he was not properly credited with his court-ordered payments through the Essex County Child Support Collection Unit for his other child is without merit since he seeks credit for payments made toward birth expenses and he is only entitled to a credit for current child support actually paid (Chautauqua County Com'r of Social Services on Behalf of Jessica R. v. Dana R., 244 AD2d 866, 866-867, 665 NYS2d 130; Barber v. Cahill, 240 AD2d 887, 658 NYS2d 738). His recourse is to proceed by way of a petition for modification before the Support Magistrate.
On review of objections to the findings of a support magistrate, Family Court has the authority to make new findings of fact and a new order without holding a hearing (FCA §439[e]). Review of the record here discloses that the Support Magistrate failed to impute income to Stanton despite the fact that she was living with her parents rent free, and the record is silent as to the reason for not doing so. She did contribute $50.00 per week ($216.55 per month) for food, and therefore the amount to be imputed to her should be the difference between that contribution and the $500 per month imputed to Kelley. This amounts to an additional $3,402 ($283.45 per month) and increases Stanton's income for child support purposes to $27,413 from the $24,011 (wages of $26,000 less FICA of $1,989) determined by the Support Magistrate.
As a result of the upward modification of Stanton's income, the parties' combined parental income (FCA §413[b][4]) amounts to $46,315, rather than $42,913 as calculated by the Support Magistrate, with Kelley's pro rata share being 41% instead of 44%. Applying the CSSA child support percentage of seventeen percent (17%) to the combined parental income results in an annual child support obligation of $7,871, of which Kelley's pro rata share is $3,228 per year, or $62 per week - an amount unchanged from the Support Magistrate's findings. His pro rata share of future medical expenses for the parties' child not covered by health insurance is 41%. [*4]
The record also reveals that no child care expenses were apportioned among the parties despite Stanton's undisputed testimony that she incurs such expenses at the rate of $135 per week due to her work schedule, and no claim has been made by Kelley that these expenses are unreasonable or that he has paid any monies toward such child care expenses. The requirement that reasonable child care expenses be apportioned, separately stated, and added to the amount of child support, is mandatory (FCA §413[1][c][4]). Stanton's 59% share of child care expenses is $80, and Kelley's 41% share of such expenses, amounting to $55, shall be paid to Stanton through the Essex County Child Support Collection Unit commencing March 7, 2008. Since child support orders are required to be made "effective as of the date of the filing of the petition therefor" (FCA §449[2]), Kelley's arrears for child care expenses are established at $1320.00, retroactive to the date of filing, and shall be paid to Stanton in care of the Essex County Child Support Collection Unit at the rate of $5.00 per week commencing March 7, 2008.
Kelley's objections are granted in part to the extent provided above, but they are in all other respects denied.
IT IS SO ORDERED.
ENTER
______________________________________
Richard B. Meyer
J.F.C.
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
