Matter of Carol A.S. v Mark H.
Annotate this CaseDecided on January 30, 2017
Family Court, Kings County
In the Matter of a Proceeding for Support Under Article 4 of the Family Court Act, Carol A.S., Petitioner,
against
Mark H., Respondent.
F-23138-2014
The parties were self-represented.
Javier E. Vargas, J.
Papers Numbered
Summons, Petitions, Affidavits & Exhibits Annexed 1
Court File & Proceedings Transcripts 2
Objection to Support Order & Exhibits Annexed 3
Upon the foregoing papers and for the following reasons, the Objections filed by Respondent Mark H. (hereinafter "Father"), to an Order of Support dated October 21, 2016, issued by Support Magistrate Andrea Hecht-Zaki, are granted in part and the matter is respectfully referred back to the Support Magistrate for further proceedings consistent with this Decision and Order.
By Petition filed September 10, 2014, Petitioner Carol A. S. (hereinafter "Mother") commenced the instant proceeding against Father in Kings County Family Court in order to establish his paternity and provide support for the subject Child. There were several appearances before different Support Magistrates. On the initial appearance of November 24, 2014, Support Magistrate [*2]Jennifer Castaldi adjourned the case to January 12, 2015, directing Mother to return with the subject Child's birth certificate. Only Father appeared before Support Magistrate Richard R. Spegele, who adjourned the case on Mother's request to April 13, 2015. On that appearance date, Mother informed the Magistrate that Father has been supporting the Child, but insufficiently as the Child was currently in college. For his part, Father informed the Magistrate that he directly gives the Child the sum of $600 per month for her college expenses. The Magistrate ordered DNA Genetic Marker testing of Father and adjourned the case to July 13, 2015, directing the parties to return with their 2014 tax returns, Financial Disclosure Affidavits and proof of college expenses.
On July 13, 2015, the Magistrate noted that DNA results reflected a probability of Father's paternity of 99.99%; however, no Order of Filiation was entered at that time. Mother again informed the Magistrate that she was seeking tuition payments for school. In response, the Magistrate advised the parties that while he can issue a Child Support Order from the filing date of the Petition until the Child's 21th birthday (May 25, 2015), Mother would have to prove special circumstances in order to receive college tuition reimbursement. Father again stated to the Magistrate, without any proof, that he paid $600 per month directly to the Child; that he has three other children; and that he was ordered to pay child support in the amount of $2,000 per month for two of those children as per a Divorce Judgment, but did not have a copy of the receipts or decree with him. The Magistrate adjourned the case to November 9, 2015, directing Father to provide copies of all payments made to the Child from September 10, 2014 to May 25, 2015, a copy of his Divorce Judgment and all relevant proofs.
On November 9, 2015, the parties appeared and the Magistrate noted that neither party had all their mandatory financial documents with them in court. Father informed the Magistrate that he was paying money directly to the Child in her bank account, and the Magistrate reiterated that Father was obligated to provide all proof evidencing the alleged payments of money directly to the Child and any other documents regarding the other children for whom Father provides support. He again adjourned the case to January 8, 2016 for the parties to return with all mandatory financial documents.
On January 8, 2016, the parties appeared before Support Magistrate Mirna Mompelas, who inherited Magistrate Spegele's caseload upon his December 2015 retirement. Noting the absence of an Order of Filiation in the court's file, the Magistrate entered an Order of Filiation after fully allocuting Father. She adjourned the case once more to March 25, 2016, directing Mother to bring in proof of her educational expenses, Father to bring in his Financial Disclosure Affidavit and both parties to bring in their 2014 and 2015 tax return forms and W2 statements.
On March 25, 2016, Father alone appeared before new Support Magistrate Hecht-Zaki, who was assigned to Magistrate Spegele's part. Although the case was originally scheduled for 9:30 a.m., the Court Clerk spoke to Mother informing her that the case would be heard at 2:30 p.m. Mother then told the Clerk that she would not be appearing. There was no further contact from Mother, prompting the Magistrate to dismiss her Petition due to Mother's nonappearance. Months later, on June 27, 2016, Mother filed a Notice of Motion seeking to restore the case to the calendar and was ordered to serve Father.
Both parties appeared on September 30, 2016 with respect to Mother's Motion to restore where she claimed that she was contacted by the court on March 24th and the Clerk informed her that the new court date would be sent to her in the mail. She requested a reinstatement of the Petition so that she can recoup her Child's tuition expenses for the period plus any retroactive support. Father gave his opposition to Mother's motion, and informed the Magistrate that he had proof of the [*3]direct payments to the Child during the period from September 10, 2014 to May 25, 2015. Thereafter, the Magistrate asked the parties to submit all their proof and reserved decision.
By Order dated September 30, 2016, the Magistrate granted Mother's motion to restore the Petition to the calendar. According to her accompanying Findings of Fact dated October 19, 2016, the Magistrate found that Mother presented an excusable default and a meritorious claim. In separate Findings of same date, the Magistrate determined that Father's gross income from salary derived from his most recent pay stubs was $142,604.28 per year and that his adjusted gross income was $128,814.93 annually. Mother's gross income from her 2015 tax return was $31,769 per year and her adjusted gross income was $27,895.67 annually, yielding their combined adjusted gross income to be $156,710.60 annually. Father was not credited with any voluntary payments during the period, nor was he credited with any prior orders of support because, according to the Magistrate, he did not submit proof of any direct payments to Mother nor was there any proof of the existence of "actual child support payments" to a non-subject child.
Without much explanation, the Magistrate additionally applied the basic child support percentage (17%) to the amount ($13,710.60) exceeding the $143,000 statutory income cap.[FN1] However, Mother's application for college expenses was denied as she did not submit any documentary proof regarding the total cost of college tuition or her out of pocket cost. In conclusion, the Magistrate entered an Order of Support dated October 20, 2016, directing Father to pay $840 biweekly through the Child Support Collection Unit, to be terminated effective May 25, 2015, the date of the subject Child's 21st birthday. Retroactive support arrears payable by Father were set at $15,480.
On November 28, 2016, Father filed his Objections to the Order of Support arguing that the Magistrate erred in failing to consider his child support payments to his other children under a Nassau County Supreme Court's Divorce Judgment (Bennett, J.) dated July 31, 2015 - which he finally submitted — and his alleged provision of $600 per month directly to the subject Child after she went away to college, which amounts should be deducted from the retroactive support arrears. Said Objections have been forwarded to the Undersigned for review, and no rebuttal has been submitted by Mother. After its review, this Court partially agrees with Father.
Under Family Court Act § 413(1)(a), "the parents of a child under the age of twenty-one years are chargeable with [his/her] support and, if possessed of sufficient means or able to earn such means, shall be required to pay for child support a fair and reasonable sum as the court may determine." To aid the court in determining the appropriate child support award, Family Court Act § 424-a provides for "compulsory financial disclosure" and the Support Magistrate is granted discretion in regulating financial disclosure in child support proceedings (see Matter of Spoor v Spoor, 276 AD2d 887 [3rd Dept. 2000]). Once the parties have complied with financial disclosure pursuant to Family Court Act § 424-a, the Magistrate shall enter an order of support based on the formula contained in Family Court Act § 413(1)(c), which first step provides for the calculation of the combined parental income (see Matter of Cassano v Cassano, 85 NY2d 649 [1995]; Matter of Perel v Gonzalez, 105 AD3d 552 [1st Dept. 2013], lv denied 21 NY3d 865 [2013]). Deductions from such parental income include "child support actually paid pursuant to court order or written [*4]agreement on behalf of any child for whom the parent has a legal duty of support and who is not a subject to the instant action" as well as New York City, Social Security and Medicare (FICA) taxes actually paid (see Family Court Act § 413[1][b][5][vii]). In the second step of the formula, the court must multiply the combined parental income up to the 2016 statutory cap of $143,000 by the appropriate child support percentage (see Family Court Act § 413[1][c][2]). That figure should then be prorated in the same proportion as each parent's income is to the child support percentage (id.).
Applying the foregoing legal principles to the matter at bar, the Magistrate appears to have improperly failed to consider certain evidence offered by Father in calculating his child support share, but properly determined her denial of credits for "voluntary payments" allegedly made by him to the Child, and for college expenses to Mother. Initially, the Magistrate determined that Father's annualized gross income as per his year to date pay stub for the period ending September 17, 2016 was $142,604.28 and that Mother's gross income as per her 2015 tax return was $39,176. To determine Father's annual gross income, the Magistrate should have also used Father's 2015 tax return, as compared to his year to date 2016 income from his pay stub. This would have provided the Magistrate with a more reliable basis for determining his gross income. If the Magistrate relied on this pay stub for her calculations, Father's gross income should have been annualized as follows: year to date income $99,236.95/37 weeks = $2,682 x 52 weeks = $139,468 per year, not $142,604.28.
In addition, the Magistrate deducted only NYC and FICA taxes from the parties' gross income to determine their respective adjusted gross income, without considering "child support actually paid" by Father. In fact, the record reflects that throughout the proceedings, Magistrate Spegele directed Father to bring in his Divorce Judgment and any proof of payment of another child support order, which Judgment was apparently being issued by the Supreme Court contemporaneously. A review of the taped proceedings reveals that similar instructions were not provided to Father when Magistrate Mompelas handled the case. Thereafter, the case was dismissed by Magistrate Hecht-Zaki due to Mother's non-appearance. Despite Father's opposition to Mother's subsequent motion to restore, Magistrate Hecht-Zaki restored the case to the calendar months thereafter. When that Magistrate finally reviewed the file in preparation of her Findings of Fact and determination, any documents tending to prove the existence of a prior child support obligation or order was apparently absent from the Court's file. In calculating child support, courts may elect not to deduct claimed child support "pursuant to court order or written agreement" for a child of a former marriage where there is a lack of "evidence establishing that [Father] actually paid child support to the custodial parent of that [other] child" (Baumgardner v Baumgardner, 98 AD3d 929, 931 [2nd Dept. 2012]). Nevertheless, in this instance, due to the confusion surrounding the retirement of Magistrate Spegele, the dismissal and subsequent restoration of the Support Petition and the fact that several Magistrates handled this matter, providing varying instructions to the parties, the Court finds that the Magistrate should have granted at least one more opportunity for Father to come back with financial proof of "child support actually paid" and should consider his Nassau County Divorce Judgment in her calculations (see id.; Domestic Relations Law §240[1-b][b][5][vii][D]).
The Magistrate determined that Father's share of the obligation for income up to the statutory cap of $143,000 was $766.70 biweekly. Under step three of the child support formula, the Court must then determine whether to apply the statutory percentage to amounts above $143,000 based on the statutory considerations set forth in Family Court Act § 413(1)(f) and sufficiently articulate its reasons for doing so (see Family Court Act § 413[1][c][3]; Matter of Cassano v Cassano, 85 [*5]NY2d at 654-655; Weitzner v Weitzner, 120 AD3d 1406 [2nd Dept. 2014]). As the Second Department has repeatedly warned, the Family Court's decision "should reflect a careful consideration of the stated basis for its exercise of discretion, the parties' circumstances, and its reasoning why there [should or] should not be a departure from the prescribed percentage" to the parental income above the cap (Matter of Pittman v Williams, 127 AD3d 755, 756 [2nd Dept. 2015]). Here, the Magistrate applied the applicable statutory percentage (17%) to amounts over $143,000 without any explanation in her findings, other than stating that "the gross income of one parent is substantially less than the other parent's gross income." The Court finds that the Magistrate erred in failing to consider the factors contained in Family Court Act § 413(1)(f) and the matter must be remitted for her to articulate its reasons for the new determination (see Matter of Eagar v Suchan, 128 AD3d 961 (2nd Dept. 2015); Matter of Pittman v Williams, 127 AD3d at 757).
Finally, pursuant to Family Court Act § 440(1)(a), any retroactive amount of support due shall be support arrears/past due support and shall be paid in one sum or periodic sums, as the court directs, and any amount of temporary support which has been paid to be taken into account in calculating any amount of such retroactive support due. Retroactive support is calculated back to the filing date of the petition (see Matter of Jablonski v Jablonski, 275 AD2d 692 [2nd Dept. 2000]. Generally, "voluntary payments made by a parent for the benefit of children and not pursuant to court order may not be credited against amounts owing under the order" for child support (Lefkow v Lefkow, 188 AD2d 589 [2nd Dept. 1992]; see Horn v Horn, ___AD3d___, 2016 NY Slip Op 08198 [2nd Dept. 2016]). However, where a custodial parent concedes to the credit, courts may offset retroactive support payments by amounts paid by the non-custodial parent, not pursuant to court order, after the filing date of the Petition (see Matter of Freilich v Freilich, 2013 NY Slip Op 50771[U], 39 Misc 3d 1227(A) [Kings County Sup Ct 2013]).
In the instant matter, Father repeatedly claimed that he has paid $600 per month directly to the Child purportedly for her college living expenses by directly depositing that amount to a Bank of America account. The record does contain several bank Customer Receipts (barely legible) for amounts deposited into a Bank of America Account from November 2014 to May 2015; however, there is no notation or indication that those deposits were made by Father and into the Child's account. There are no names on the receipts or any indication of who own each account. When queried regarding the deposits, Mother disputed the amounts given to the Child. Furthermore, she never conceded to Father receiving credit for the payments, and the record reflects that Father did not give any of the money directly to Mother. According deference to the Magistrate's credibility findings on this record (see Matter of Jennifer H.S. v Damien P.C., 50 AD3d 588 [1st Dept. 2008], lv denied 12 NY3d 710 [2009]), the Court finds that the Magistrate did not err when she declined to credit the retroactive support for alleged "voluntary payments" made subsequent to the Petition filing date "not pursuant to court order" (Lefkow v Lefkow, 188 AD2d at 589; see Horn v Horn, supra).
Accordingly, Father's Objections are granted in part and this matter is respectfully remanded for the Magistrate to recalculate the parties' combined parental income, determine child support for income up to $143,000, and to set forth detail findings as to why or why not the statutory percentage should be applied to combined parental income above the $143,000 statutory cap. Father is to provide the Magistrate with his 2015 tax return and W2 Statement. Both parties are required to appear ready to proceed. This constitutes the decision and order of this Court.
E N T E R:
Dated: January 30, 2017
Brooklyn, New York
J.F.C. Footnotes
Footnote 1:Such calculations of the statutory cap of $143,000 x .17 = $24,310. Father's share: $24,310.00 x .82 = $19,934 per year or $766.70 biweekly. Income above statutory cap $156,710 - $143,000 = $13,710 x .17 = $2,330. Father's share above statutory cap: $2,330.00 x .82 = $1,911 per year or $73.51 biweekly.
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