Martin v Buckley

[*1] Martin v Buckley 2011 NY Slip Op 52235(U) Decided on December 2, 2011 Supreme Court, Monroe County Fisher, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on December 2, 2011
Supreme Court, Monroe County

Kurt D. Martin, Plaintiff, Defendant.



2011/08980

Kenneth R. Fisher, J.

Following the court's October 27, 2011, Decision and Order, the parties submitted updated financials and affidavits. Contrary to the father's objections thereto, the court finds that the mother's employment circumstances were such that more complete documentation than was provided will be well-nigh impossible to locate. She has worked a variety of part-time jobs, some paying in cash, in large part because of the severe special needs of the parties' child, and in some measure by reason of her unavailability for employment because of substance abuse behavior. Accordingly, the documentation sought by plaintiff is not likely to exist. In any event, the statute requires that "[t]he court shall make an order for temporary child support notwithstanding that information with respect to income and assets of either or both parents may be unavailable." DRL §236(b)(7). The court observes that the moving party has submitted a sworn statement of net worth, 22 N.Y.C.R.R. §202.16(g), such that it would be inappropriate to accede to plaintiff's demand to defer a CSSA determination to the time of trial.

The parties agree in large part on their respective roles in raising their child and the amount of time each spends with their child, but some disputes exist. Each presents a detailed account, and plaintiff has attempted to quantify it in his affidavit which, he contends, shows that he spends slightly more time with the child than the mother does now that she is back in Rochester following substance abuse treatment in 2010. It appears undisputed that plaintiff was the sole care-giver (with school personnel, aides, and intermittent hospital care) when defendant was in substance abuse treatment. Nevertheless, the court will treat plaintiff's breakdown for the months of September and October 2011 as a description of the current shared custody arrangement, which in large measure is likely to continue [*2]without a relapse on the part of defendant.

The small disparity in time with the child with each respective parent urged by plaintiff to be in his favor does not take this case out of the essentially 50-50 shared custody arrangements scenario recognized in the CSSA case law. Compare, Matter of Joleene D.R. Robert J.W., 15 Misc 3d 1148(A), 2007 WL 1704616 (Fam. Ct. Oswego Co. June 14, 2007)(large disparity satisfies burden to show which was the custodial parent), with, Kaye v. Kaye, 6 Misc 3d 1005(A), 2005 WL 41558 (Sup. Ct. NY Co. Jan. 5, 2005)("the parties share roughly equivalent amounts of time with the children")(emphasis supplied). Given the small difference in times with the children alluded to by plaintiff, which is admittedly not equal, but is "roughly" so, "identifying the [non -]custodial parent based on relative incomes is consistent with the intent of the CSSA to make sure that the children enjoy a particular standard of living, wherever they happen to be residing at a particular time." Id. 6 Misc 3d 1005(A), 2005 WL 41558 at *9. Accordingly, and particularly in view of defendant's income figures, plaintiff is determined to have the greater pro rata share of the child support obligation and is identified as the non-custodial parent for child support purposes. Eberhardt-Davis v. Davis, 71 AD3d 1487 (4th Dept. 2010).

This latter rationale eschews the formalistic, hour by hour, overnight by overnight, approach taken by the father in his affidavit. With one exception involving a recent emergency trip to the hospital asserted in the father's affidavit, the mother's detailed account of her care for the child, which involves taking him to his doctor's appointments while in the care of child heath aides who provide weekly care to him (because the aides provide no transport), is uncontradicted by the father, who treats hours "with aides" as "not with either party." As the mother asserts, again without contradiction in specifics (except for the recent hospital emergency), "doctor appointments usually take several hours per day" when they occur, and sometimes all day or overnight. In short, despite the relatively small hours/days differential asserted in the father's affidavit to be in his favor, his figures do not account for the mother's regular attendance with the child during time with the health care aides and when doctor visits are required nor does it account for her attendance during hospital visits. The only exceptions to this appear to be when in 2010 the mother was attending in-patient substance abuse treatment out of state, and the recent hospital emergency referred to by the father. Accordingly, the mother fully supports her assertion that she has been the primary homemaker while the plaintiff was the primary breadwinner.

On these facts, it would be overly formalistic to find that the father is the custodial parent for CSSA purposes. In any [*3]functional sense, given the very limited financial resources generated by the mother due to the extraordinarily intensive and time consuming child care needs which must be brought to bear on the situation, the court finds that physical custody is equal enough such that the father, having the greater pro-rata share of the child support obligation, must be identified as the non-custodial parent having an obligation to pay child support. Moore v. Shapiro, 30 AD3d 1054 (4th Dept. 2006); Redder v. Redder, 17 AD3d 10 (3d Dept. 2005). Of course, this determination is for pendente lite purposes only, and the matter will not be ripe for final determination until the discovery process is exhausted and evidence is presented at trial. Suffice to say that the facts as found above are sufficiently undisputed on the current record that the court finds that no pendente lite hearing is necessary.

Although it has been held that, in pendente lite cases, courts "are not required to deduct the maintenance award from . . . [the] gross income before applying the formula set forth by the . . . [CSSA]," Welker v. Welker, 72 AD3d 655, 657 (2d Dept. 2010)(emphasis supplied), not doing so in this case would be unjust and unreasonable given the vast income disparity present and the double counting that the new temporary maintenance statute appears to require when making pendente lite awards (see below). Accordingly, even though temporary maintenance likely will not terminate during the pendency of this action, except in the unfortunate event of the child's passing, the court's temporary order will require plaintiff to pay maintenance and it will also provide "for a specific adjustment . . . in the amount of child support payable upon termination of . . . maintenance" DRL §240[1-b](b)(5)(vii)[C], such that the statute will allow plaintiff to deduct his maintenance obligation in arriving at the amount of his income available for child support. Cf., Salvato v. Salvato, ___ AD3d ___ (4th Dept. November 18, 2011)("there was no provision for an adjustment of child support upon the termination of maintenance, and thus there was no basis for the court to deduct maintenance from defendant's income in determining the amount of child support"); Lenigan v. Lenigan, 159 AD2d 108, 111 (3d Dept. 1990). In other words, given the dictates of the new temporary maintenance statute, applying the rationale of the "double shelter allowance" cases under the CSSA comes to mind. In such cases, "[t]he usual method of rendering an improper double award for shelter is to deduct the amount awarded for carrying charges from the payor spouse's income before determining the appropriate amount for child support . . . [and] then recalculat[e] based on that figure, and that amount is awarded together with a direction to pay the carrying charges." Ryder v. Ryder, 267 AD2d 447, 448 (2d Dept. 1999). See also, Barone v. Barone, 292 AD2d 481, 482 (2d Dept. 2002), and esp., [*4]Sincurelli v. Sincurelli, 285 AD2d 541, 542 (2d Dept. 2001)(collecting cases). Thus by providing in the pendente lite order for the specific adjustment of the CSSA obligation payable upon termination of maintenance called for under DRL §240[1-b](b)(5)(vii)(C), a similar avoidance of double counting in the child support and maintenance awards may be achieved.

However, because the new temporary maintenance statute plainly also involves double counting of, inter alia, such carrying charges, Lee Rosenberg, Multiple Flaws in New Interim Spousal Support Statute, N.Y.L.J. (February 25, 2011)("double counting of housing, child care, and medical insurance between this [interim maintenance] law and the child support law")("[i]s the recipient supposed to pay for everything in the house from this money? Is the payor supposed to stop paying those bills?"), a credit for carrying costs where they are ordered to be paid by the monied spouse must be deducted from each award to avoid a finding that they are, either alone or in combination, unjust or inappropriate. Id. ("the awards [CSSA and interim maintenance] should not be duplicative"). Accordingly, the court turns to the issue of temporary maintenance before making the CSSA calculation.

The mother has asked the court to impute income to her in an amount no more that $10,000.00. The father, however, who avers that he does not know how much she has earned since he separated the couple's finances in 2004, submits the affidavit of defendant's sister and former husband, the latter of which pays her $250/month child support for their child in common, P___. The sister helped defendant with budget management between April and mid May 2011, and questions defendant's expense figures in her revised Statement of Net Worth. She also asserts, supported by the affidavit of defendant's former husband, that he pays her more than $250/month for child support. In particular, defendant's sister and former husband assert that her former husband made car payments on her behalf from late March through May, and the father establishes that his base child support obligation under their 1996 Separation Agreement is $1,200.00/month payable to defendant. He has, evidently with her consent, reduced his monthly support obligation by amortizing his $19,758 treatment facility loan to her in 2010 over the expected term of P.'s child support and by making the car lease payments for her and by loaning her the money for the security deposit on the new apartment she shortly will move into.

Although plaintiff appears to be arguing that these payments should be counted in calculating defendant's income for CSSA and temporary maintenance purposes, he does not establish that the former husband's payments on defendant's behalf exceed his CSSA obligation under their 1996 agreement. Child support payments received from a prior spouse for the benefit of a child of the [*5]prior marriage are not included as income taxable to defendant, 26 U.S.C. §71(c)(1), and thus are not included as income under DRL §240[1-b](b)(5)(i)("gross [total] income as it should have been or should be reported in the most recent federal income tax return"), or for purposes of the temporary maintenance or CSSA calculations required in this case. DRL §236(B)(5-a)(b)(4)(a). See Halperin v. Halperin, 282 AD2d 340 (1st Dept. 2001)(CSSA calculations "were erroneous to the extent that child support payments received by defendant were included as income").

Nor does plaintiff establish that defendant has under reported or misrepresented her true income in any material respect in this proceeding. Although defendant's sister asserts that defendant's income "was approximately $2,750 per month from all her sources" (emphasis supplied)(which comes to $33,000.00 yearly), this amount presumably included the $1,200.00/month CSSA payments due to defendant (or $14,400.00 yearly) which is not to be included as income to defendant for the reasons stated above, and the $800.00 per month her sister claimed she paid defendant for cleaning and babysitting (or $9,600.00 yearly) until May 2011 when defendant left her sister's employ. That leaves $9,000.00 of yearly income to defendant, who asks the court to impute $10,000.00/year income to her. This is hardly a misrepresentation and, given the sister's appearance in the litigation as a witness for the plaintiff, I ascribe no improper motive to defendant in her departure from the sister's employment in May.

That leaves the question whether more income should be imputed to defendant for other reasons. It is true that a parent cannot avoid a child support obligation by reason of voluntary substance abuse. "To the extent that the father's financial hardship is the result of his own wrongful conduct, he is not entitled to a reduction of his obligation to pay child support." Niagara County Dept. of Social Services ex rel. Hueber v. Hueber,

- AD3d , 2011 WL 5433691 (4th Dept. November 10, 2011). But on this record it is not even probable that defendant's earning capacity was impaired by her substance abuse. All kinds of people function well enough during periods of substance abuse to carry on functional employment, even if abuse for in-patient treatment becomes necessary. Rather, the record shows that defendant's capacity to earn income has been impaired by the very real, intensive, and extraordinary care that she was required to give to their child while plaintiff remained fully employed as the family's breadwinner. Accordingly, there is no reason to impute more income to her than she will agree to.

Accordingly, the court accepts the presumptive temporary maintenance calculation without the carrying cost credit as set forth in defendant's papers. Using plaintiff's yearly projected income gross figure of $77,878, less FICA of $4,400 (or $73,478), [*6]and wife's imputed gross income figure of $10,000, less FICA of $565 (or $9,435), calculation #1 yields $20,156.40, and calculation #2 yields $23,730.20, the lower of which is $20,156.40 or $1,679.70 monthly or $387.62 weekly. These calculations are without a carrying cost credit.

Plaintiff reports the following marital residence carrying costs.

Carrying Costs MonthlyAmountYearly Payment

Mortgage$1,218.68

Real Estate Taxes436.66

Utilities390

Homeowners Insurance70

Total Monthly Carrying$2,165.34or$25,984.08

Deducting $25,984.08 from plaintiff's income figure (as adjusted for FICA) of $73,478 yields $47,493.92 as plaintiff's available income for support purposes. Ryder v. Ryder, 268 AD2d at 448. Accordingly, with the carrying cost credit, calculation #1 yields $12,861.18, and calculation #2 yields $13,336.57, the lower of which is $12,361.18 or $1,030.10 monthly.

FINANCIAL IMPACT OF PRESUMPTIVE AWARD ON THE PARTIES

Before determining whether the above presumptive award is "unjust or inappropriate," thus necessitating a deviation according to the statutory factors, the court must assess the financial impact on the respective parties of the presumptive award. Fortunately, in this case, unlike many cases, the record is largely undisputed thus making the pendente lite determination easier. Compare Scott M. v. Ilona M., 31 Misc 3d 353, 361 (Sup. Ct. Kings Co. 2011)(observing that the new statute requires the court "to consider factors some of which can only be established after a full trial and or extensive discovery," therefore making decision making at this state "difficult"). The following tabular display illustrates vividly the financial impact to the payor spouse visited on him by a presumptive temporary maintenance award. It also reveals the shift in resources to the non-working payee spouse if the presumptive award is ordered.

CSSA Deducting Presumptive Maintenance Award

With a yearly $12,361.18 maintenance award, plaintiff's CSSA income, after application of the carrying cost credit, is thereby further reduced by that amount ($47,493.92 - $12,361.18) to $35,132.74. H CSSA Income$35,132.7478.83% W CSSA Income Total 17%9,435.00 44,567.74 7,576.5221.17%

Plaintiff's Share = $5,965.48/yearly or $497.12/monthly.

Pretax yearly expenses to plaintiff under the presumptive [*7]temporary maintenance and CSSA formula as set forth above, which includes a credit for carrying costs hereby ordered to be paid, are as follows: Carrying costs =$2165.34/monthly or$25,984.08/yearly Presumptive

Maintenance=

$1030.10/monthly or

$12,361.18/yearly CSSA= $497.12/monthly or$5,965.48/yearly Total Pretax Monthly/Yearly Expenses=

$ 3,692.56/monthly or

$44,310.74/yearly Plaintiff filed jointly in 2010, but did not report defendant's income.Federal Taxes$ 3,916.00

State Taxes$ 3,379.00

Total Taxes$ 7,295.00

Total expense burden on plaintiff= $51,605.74

Impact on Plaintiff and Defendant of Presumptive Maintenance Award

Plaintiff (H):$73,478 less $51,605.74 = $21,872.26/yearly

or$ 1,822.69/monthly

Defendant (W):$9,435 plus $18,326.66 =$27,761.66/yearly

or$ 2,313.47/monthly

Plaintiff contends that payments of this presumptive amount will result in the loss of the marital home, and the court agrees. Scott M. v. Iolona M., 31 Misc 3d 353, 362-63 (Sup. Ct. West. Co. 2011)("the shift in resources from payor spouse to the payee spouse results in the payor spouse having a substantial reduction in resources and thus cannot maintain his pre-separation household"). "Simple mathematics and common sense dictate that it costs more to maintain two households than one." Id., 31 Misc 3d at 363. Here, as in Scott M., supra, "there is no indication that the parties had resources that were not utilized," and "[t]here is no reason . . . [that plaintiff] should be forced to move pendente lite especially where the issue of custody is unresolved." Id. 31 Misc 3d at 363. Moreover, the disruption caused by such a move is not in the best interests of the child considering his dire circumstances. As Scott M. holds, the court must consider the existence and duration of the "[m]arital joint household," DRL §236(B)(5-a)(e)(1)(g)(sub-par g uses the phrase "existence and duration of a pre-marital joint household" a manifest non-sequitur - - why refer to a "joint" [*8]pre-marital estate?), the exceptional child care obligations of the parties, DRL §236(B)(5-a)(e)(1)(l), and in particular the "net available resources." Id. 31 Misc 3d at 365.

In Scott M., the court conceived that the sheer size of the presumptive award cannot be a possible catch-all deviation factor under §236(B)(5-a)(e)(1)(9). Id. 31 Misc 3d at 363 (subpar. g's "any other factor" cannot "allo[w] a blanket rejection of the [presumptive] calculation because it is simply too much money")("granting a deviation just because there is a resource shift would be inconsistent with the statutory intent"). In this, the court agrees. But the court believes that consideration of the size of the award in relation to the total resources available to the parties' is a permissible qualitative factor under §236(B)(5-a)(e)(1). Application of each of the statutory deviation factors is geared to either reduce or increase the presumptive formulaic award. Therefore, consideration of the sheer size of the presumptive award in relation to the parties' total available resources is within the scope of, or as ejusdem generis with, the enumerated sixteen deviation factors and thus does not run afoul of the new statute or its intent.[FN1]

In Scott M., a very learned and sensible decision, the shear size of the presumptive award in relation to the parties' total available resources had to have played in the choice of a one-third reduction ordered by the court notwithstanding language in the decision to the contrary (quoted above). There were considerably more resources at issue in Scott M. than are present in this case. The payor spouse here earns $73,000 + whereas the payor in Scott M. made nearly $150,000. The payee here makes about $10,000 (imputed) whereas the payee in Scott M. made some $30,000 +. Nevertheless, the choice of a deviation award simply as a fraction of the presumptive award would not be consistent with a statute expressing deviation factors exclusively in a qualitative, rather than simply numeric, assessment of the parties' circumstances. The court in Scott M. clearly recognized [*9]this when, after choosing a 1/3 reduction, it made a qualitative assessment of the total combined resources of the parties in relation to the pre-divorce expenses of both parties. Scott M., 31 Misc 3d at 364-65.

Here, the income redistribution contemplated by the presumptive award at these disparate income levels simply strips the wage earning spouse of most of what he earns and simply gives it to the non-wage earning spouse without any reference to established need or merit. Application of the statutory presumption therefore reflects unequal treatment of the spouses based upon a highly questionable legislative determination that one spouse is more worthy than the other to share in a martial estate largely consisting of the wage earner's income when at the pendente lite stage there is no presumption of equitable realignment one way or the other.

Accordingly, the court deviates from the presumptive formula by awarding maintenance of $8,000.00/yearly, or $666.67/monthly. This reduction also factors in the court's determination that defendant's expenses include $200/month or $2,400/yearly for cigarettes, a habit plaintiff should not be required to support, the additional fact that any final maintenance award is likely to be durational in this 9+ year marriage, and because of the tax burden on plaintiff, DRL §236(B), and other carrying charges he must meet for the marital residence which he commendably maintains, now by court order, presumably for the benefit of this child of special needs.

The child support calculation deducts plaintiff's $8,000.00 maintenance obligation from the income figure for CSSA purposes, taking into account the credit for carrying charges, of $47,493.92/yearly to arrive at $39,493.92/yearly. Defendant's income figure for CSSA purposes is $9,435/yearly. Maintenance is not added to the payee's income for CSSA purposes when "the maintenance award, . . . , [i]s made concurrently with the child support award, and thus, the prospective maintenance payments, when viewed at the time of decision, did not fall within the definition of "gross [total] income as should have been or should be reported in the most recent federal income tax return."'" Matter of Krukenkamp v. Krukenkamp, 54 AD3d 345, 346 (2d Dept. 2008)(quoting Harrison v. Harrison, 255 AD2d 490, 491, and the statute). Therefore, the total income for CSSA purposes is $48,928.92, 17% of which is $8,317.92. With plaintiff's pro rata obligation at 80.72%, his CSSA obligation is $6,714.23/yearly or $559.52/monthly.

The foregoing discussion does not quite capture the senselessness of a statutory presumption expressed wholly in formulaic fashion balanced against (again, statutory) deviation factors requiring a wholly qualitative assessment and determination of the parties' respective circumstances. These [*10]two approaches to temporary spousal maintenance are inherently incompatible, particularly in view of the fact that the statutory percentages chosen by the legislature for the presumptive award formula bears no relationship to any conceivable notion of reasonableness, appropriateness, let alone justice, in a case involving respective income levels such as this. The tabular display above betrays the true office of the statutory presumption, viz. that despite the statutory goal to encourage speedier resolution of cases, and to encourage and "facilitate settlement of cases," 2010 Sess. Laws, Ch. 371 (Assembly) 1943, at 1944, "the practical result is that, in many cases such as this, the convoluted provisions, particularly of the maintenance law, will cause more litigation, more court time, more resentment, and more motion practice - - because the monied spouse will not be able to live with the result." Lee Rosenberg, supra (text at conclusion).

Finally, this case illustrates the very real need to scrap the entire temporary maintenance scheme enacted last year. In the absence of repeal, the statute should be amended to require the court to deduct the temporary maintenance award from the payor's gross income before making the CSSA calculation (p. 5 above); amend DRL §240[1-b](b)(5)(vii)(C) to permit such deduction in temporary maintenance cases only without ordering pretrial a specific adjustment as provided in that subparagraph (p.p.5-6, above); amend DRL §236(B)(5-a)(e)(1)(g) to delete "pre" from the phrase "pre-martial joint household" (pp. 13-14, above); and readjust the presumptive percentages in making the temporary award along a sliding scale of incomes to ameliorate the devastating financial effects imposed by the presumptive award at income levels such as this one so that judges can quickly make awards without the intensive effort required to deviate in the pre-discovery phase of the case.

SO ORDERED.

______________________

KENNETH R. FISHER

JUSTICE SUPREME COURT

DATED:December 2, 2011

Rochester, New York Footnotes

Footnote 1: "Where, as here, the language to be construed is a general catchall term that follows a list of more specific words, the precept of ejusdem generis as a construction guide is appropriate — that is, words constituting general language ... are not to be given the most expansive meaning possible, but are held to apply only to the same general kind or class as those specifically mentioned.'" Miranda v Norstar Bldg. Corp., 79 AD3d 42, 47 (3d Dept. 2010)(quoting, Team Mktg. USA Corp. v. Power Pact, LLC, 41 AD3d 939, 942—943 (3d Dept. 2007) [internal quotation marks and citations omitted]). See McKinney's Cons. Laws of NY, Book 1, Statutes § 253, at pp. 409-10;