Matter of Y.D. v L.O.

[*1] Matter of Y.D. v L.O. 2022 NY Slip Op 22375 Decided on October 13, 2022 Family Court, New York County Kingo, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the printed Official Reports.

Decided on October 13, 2022
Family Court, New York County

In the Matter of a Proceeding for Support Under Article 4 of the Family Court Act, Y.D., Petitioner,

against

L.O., Respondent.



Docket No. F-14767-19
Hasa A. Kingo, J.

PURSUANT TO SECTION 1113 OF THE FAMILY COURT ACT, AN APPEAL MUST BE TAKEN WITHIN THIRTY DAYS OF RECEIPT OF THE ORDER BY APPELLANT IN COURT, THIRTY-FIVE DAYS FROM THE MAILING OF THE ORDER TO THE APPELLANT BY THE CLERK OF THE COURT, OR THIRTY DAYS AFTER SERVICE BY A PARTY OR ATTORNEY FOR THE CHILD UPON THE APPELLANT, WHICHEVER IS EARLIEST.

HASA A. KINGO, J.F.C.:

On September 19, 2022, respondent Y.D. ("Respondent") timely filed an objection to an order of support dated February 12, 2022 (the "Support Order") and findings of fact dated July 16, 2022 ("Findings of Fact") entered by Support Magistrate Amanda Norejko (the "Magistrate") and provided by the court to counsel for the parties on August 19, 2022. Petitioner submitted proof of service of the objection upon counsel to petitioner L.O. ("Petitioner"), who timely filed a rebuttal. After review of the underlying matter and the court file, including the objection, the rebuttal, a reply submitted by Respondent, procedural history, transcripts and [*2]audio recordings of the hearing, the objection is denied.[FN1]

Background

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Petitioner and Respondent are the parents of one child, born XX XX, 2011 (the "subject child"). On December 11, 2019, Petitioner filed a petition which sought to establish an order of support against Respondent for the subject child. After a substantial delay caused by the COVID-19 pandemic, a fact-finding hearing was held on the petition on December 11, 2020, December 23, 2020, January 6, 2021, February 5, 2021, February 10, 2021, February 17, 2011, February 24, 2021, March 26, 2021, March 30, 2021, and March 31, 2021. The Support Order and Findings of Fact were entered thereafter, and the court emailed copies to counsel for the parties on August 19, 2022.

The Support Order designates Respondent as the non-custodial parent for the purposes of support and provides that Respondent shall pay basic support of $4,661.00 a month, 100% of costs for childcare, education, extra-curricular, unreimbursed health related expenses, and $91,194.91 in Retroactive support.[FN2] The basic support award is based on an income cap of $350,000. Upon consideration of the factors specified in Family Court Act ("FCA") § 413(1)(f), the Magistrate determined that Respondent's pro rata share of the basic support obligation reached using the statutory cap of $154,000 would be unjust and/or inappropriate for the following reasons:

The financial resources of the custodial and non-custodial parent, and those of the child;

The standard of living the child would have enjoyed had the marriage or household not been dissolved;

The gross income of one parent is substantially less than the other parent's gross income;

(Objection, Exhibit A, Support Order at 2).

As set forth in the Findings of Fact, the following documents were entered into evidence: financial statements, pay stubs, tax returns, W-2's, and proof of additional expenses submitted by both parties. An itemized list of income and deductions of both parties and calculation of pro rata shares is annexed to the Findings of Fact as Appendix A. A list of all documents entered into evidence is annexed as Appendix B. The Magistrate calculated the parties' income and [*3]determined that Petitioner's adjusted gross income is $71,566.96, which is inclusive of Petitioner's wages and $10,000 annually imputed to Petitioner based upon financial assistance from her family (Support Order, Appendix A; Findings of Fact ¶¶ 6-14). The Magistrate determined that Respondent's adjusted gross income is $1,048,938.45, including wages, bonuses, and small amounts of interest and dividends from investments (Support Order, Appendix A; Findings of Fact ¶¶ 15-18). Based on these figures, the Magistrate determined that the presumptively correct amount of basic child support pursuant to the CSSA on income up to statutory cap of $154,000 is $2050.77 (id. ¶ 20). Citing the substantial disparity between the parties' incomes and the standard of living the child would have enjoyed if the parties' remained together, Petitioner sought an award based on combined above the cap income of $500,000 (id. ¶ 19). Respondent opposed and asserted that basic support of $2750 per month is appropriate to meet the needs of and maintain the standard of living of the child (id. ¶ 20). The Magistrate considered each of the factors enumerated under FCA § 413(1)(f) (the "paragraph (f) factors") and determined that an income cap of $350,000 is appropriate (Findings of Fact ¶ 23-24). She then calculated the child support percentage for one child of 17% set forth in FCA § 413(1)(b)(3) at $59,500 annually, and determined that Respondent's pro rata share is 94%, which resulted in a monthly award of $4,661.00 per month (Findings of Fact ¶ 25).

Respondent now objects to the Magistrate's findings. Respondent argues primarily that "the basic support amount is unjust and inappropriate because the evidence at trial showed that the parties did not lead a luxurious lifestyle and that the financial resources of Petitioner were sufficient to continue the standard of living the child enjoyed during the relationship when supplemented by the presumptive child support amount of $2,050.77" (Objection ¶ 2). Respondent further argues that the Magistrate "assigned too much weight to the fact that Respondent's financial resources are significantly higher than those of Petitioner and awarded a basic support amount that constitutes support for Petitioner herself rather than a support amount appropriate to meet the needs of the child" (id. ¶ 3). Finally, Respondent argues that the Magistrate miscalculated Petitioner's expenses, did not properly determine which of Petitioner's costs were attributable to the child, and did not give appropriate weight to the parent's equal access time with the child (id. at 7-18). Petitioner argues in her rebuttal that the Magistrate properly considered the paragraph (f) factors when calculating the combined income cap, properly calculated Petitioner's expenses and those attributable to the child, and gave proper weight to all relevant factors.

Discussion

Family Court Act § 439 (a) empowers Support Magistrates "to hear, determine and grant any relief within the powers of the Court," in proceedings properly before them. FCA § 439 (e) provides that the Support Magistrate's determination "shall include findings of fact and . . . a final order." The parties are permitted by statute to submit "specific written objection," to the order for "review" by a Family Court judge. The review of the Support Magistrate's order is essentially equivalent to an appellate review of such an order (see Matter of Cherrez v Lazo, 102 AD3d 781, 782 [2d Dept 2013]). The scope of that review, however, is narrow, and confined to whether the Support Magistrate, as the trier of fact, has made the necessary findings of fact and whether, upon review of the record, the findings of fact present a reasonable basis for that order. [*4]The findings of the Magistrate must be given great deference, as they are in the best position to assess the credibility of the witnesses and the evidence proffered (see Anthony L. v Bernadette R., 193 AD3d 510, 510 [1st Dept 2021]). Thus, the determination of the Support Magistrate should not be disturbed unless no fair interpretation of the evidence can support the findings (Tanya O. v Alexes P., 63 Misc 3d 1206(A), (NY Fam Ct 2019), citing Matter of Stone v Stone, 236 AD2d 615, 615 [2d Dept 1997]; Matter of Reed v Reed, 240 AD2d 951, 952 [3d Dept 1997]). In applying these legal principles, the scope of the Family Court judge's review consists primarily of an inquiry as to whether the Support Magistrate has made the necessary findings of fact and conclusions of law, and whether upon review of the record, there was a reasonable basis for the Support Magistrate's order. In reviewing an objection to a decision of a Support Magistrate, the Court may remand one or more issues of fact to the Support Magistrate, make its own findings of fact and its own order, with or without an additional hearing, or deny the objection altogether (FCA § 439 [e]).

The CSSA, as codified by FCA § 413, sets forth "a precisely articulated, three-step method" for determining the basic child support obligation" (Cassano v Cassano, 85 NY2d 649, 652 [1995]; FCA § 413 [1][c]). First, the court shall determine the combined parental income (FCA § 413 [1][c][1]). Second, the court multiplies the combined parental income, up to the statutory cap, by a specified percentage based upon the number of children in the household, and then allocates that amount between the parents according to their share of the total income (FCA § 413 [1][c][2]). Finally, where the combined income exceeds the statutory cap, the court "shall determine the amount of child support for the amount of the combined parental income in excess of such dollar amount through consideration of the factors set forth in paragraph (f) of this subdivision and/or the child support percentage" (FCA § 413 [1][c][3]). The paragraph (f) factors are as follows:

(1) The financial resources of the custodial and non-custodial parent, and those of the child;

(2) The physical and emotional health of the child and his/her special needs and aptitudes;

(3) The standard of living the child would have enjoyed had the marriage or household not been dissolved;

(4) The tax consequences to the parties;

(5) The non-monetary contributions that the parents will make toward the care and well-being of the child;

(6) The educational needs of either parent;

(7) A determination that the gross income of one parent is substantially less than the other parent's gross income;

(8) The needs of the children of the non-custodial parent for whom the non-custodial parent is providing support who are not subject to the instant action and whose support has not been deducted from income pursuant to subclause (D) of clause (vii) of subparagraph five of paragraph (b) of this subdivision, and the financial resources of any person obligated to support such children, provided, however, that this factor may apply only if the resources available to support such children are less than the resources available to support the children who are subject to the instant action;

(9) Provided that the child is not on public assistance (i) extraordinary expenses incurred by the non-custodial parent in exercising visitation, or (ii) expenses incurred by the non-custodial parent in extended visitation provided that the custodial parent's expenses are substantially reduced as a result thereof; and

(10) Any other factors the court determines are relevant in each case, the court shall order the non-custodial parent to pay his or her pro rata share of the basic child support obligation, and may order the non-custodial parent to pay an amount pursuant to paragraph (e) of this subdivision.

(FCA § 413 [1][f][1]-[10]).

After making the required calculations, the court "shall order the non-custodial parent to pay his or her pro rata share of the basic child support obligation" (FCA § 413 [1][f][10]). In cases where primary physical custody is shared equally, the parent with the greater income is deemed the non-custody parent for CSSA purposes (Rubin v Salla, 107 AD3d 60, 68 [1st Dept 2013]). A rebuttable presumption exists that the amount of child support calculated under the statutory guidelines is correct (Graby v Graby, 87 NY2d 605, 610 [1996]). "The presumption may be rebutted, and the support obligation adjusted, upon the court's finding that the noncustodial parent's support obligation is "unjust or inappropriate" (id., citing FCA § 413 [1][f]; 42 USC § 667). A finding that the basic child support obligation is unjust or inappropriate must be based on the paragraph (f) factors (FCA § 413 [1][f]).

Here, the Magistrate properly calculated the income of each party and performed the calculations contemplated by FCA § 413 [1][c][2]. Respondent does not raise any objections to the calculation of the combined parental income or the allocation of the pro-rata shares. With respect to the third step set forth in FCA § 413 [1][c][3], Respondent objects and argues that the Magistrate "did not properly consider" the paragraph (f) factors and incorrectly deviated from the statutory cap of $154,000 because the parties "did not lead a luxurious lifestyle" and the presumptive award is sufficient to satisfy the child's actual needs (Objection ¶¶ 6-9). Respondent also argues that the Magistrate "assigned too much weight" to the fact that Respondent's financial resources are significantly higher than those of Petitioner and "did not give appropriate weight to the Parents' equal access time" (id. at 10, 45). Finally, Respondent argues that the Magistrate improperly calculated Petitioner's expenses and failed to determine which costs of Petitioner's are attributable to the child. This court disagrees.

At the outset, the Magistrate properly designated Respondent as the non-custodial parent because the parties share equal parenting time and Respondent has higher income than Petitioner (see Rubin v Salla, 107 AD3d at 68). Respondent is correct that the Magistrate did not make a finding that the parties led a "luxurious lifestyle," but there is no statutory or other legal requirement that such a finding is necessary. Rather, the statute provides that the court "shall determine the amount of child support for the amount of the combined parental income in excess of such dollar amount through consideration of the factors set forth in paragraph (f) of this subdivision and/or the child support percentage" (FCA § 413 [1][c][3]). The Magistrate satisfied this requirement by considering each of the paragraph (f) factors and providing an analysis of each in the Findings of Fact, with citations to the evidence considered. With respect to item (3), the standard of living the child would have enjoyed had the marriage or household not been [*5]dissolved, the Magistrate considered evidence and testimony from the parties regarding their lifestyle, including the child's attendance at an elite private school, previous birthday parties, international travel, entertainment, purchases of designer clothing, artwork and updated features in the parties' homes, expenditures for car services, the parties' expenses, and the child's extracurricular activities and camps (Findings of Fact ¶ 23 [3]).

To the extent that the parties' expenses were a factor in the Magistrate's determination regarding the appropriate income cap and the needs of the child, the Findings of Fact and various attachments demonstrate that the Magistrate went to great lengths to document the evidence on which she relied and clearly delineated where adjustments were made to account for changes in the parties' spending habits due to the COVID-19 pandemic (Findings of Fact at 6-7). The Magistrate fairly considered each party's expenses in making an overall determination regarding the standard of living the child would have experienced if the household had not been dissolved. The Magistrate also correctly attributed 50% of Petitioner's household income to the child (Findings of Fact ¶ 25; see Erin C. v Peter H., 66 AD3d 451, 452 [1st Dept 2009]["The Support Magistrate and Family Court appropriately allocated 50% of petitioner's household and car expenses to the child based on evidence that the child equally benefitted from these expenditures"]).

Following a careful and thorough examination of these factors, the Magistrate concluded, "[t]he court does not find that the lifestyle of the family included a lot of extravagant spending, but there were certain comforts and opportunities for travel and enrichment that Petitioner's income afforded the child in that past that should be continued as long as the financial means are available to do so" (Findings of Fact ¶ 24). The Magistrate rejected Respondent's contention that "the court should not consider any expenses claimed by Petitioner beyond the basic necessities for which she paid during the COVID-19 pandemic when she was not receiving any child support payments," holding instead that, based upon the standard of living established for the child during the parties' relationship, the child should be able to enjoy travel, dining out, and entertainment in addition to basic food, clothing, and shelter when in the care of each of her parents (id.).

The calculation of combined parental income to be considered over the statutory cap is not a simple formula based solely on the child's basic needs, as Respondent suggests. Rather, it is a consideration of all the factors set forth in FCA § 413 [1][f]. The First Department has held that "[i]n high income cases, the appropriate determination under FCA § 413(1)(f) for an award of child support on parental income in excess of [the statutory cap] should be based on the child's actual needs and the amount that is required for the child to live an appropriate lifestyle, rather than the wealth of one or both parties" (Culhane v Holt, 28 AD3d 251, 252 [1st Dept 2006][emphasis added]). This is in accord with, and does not supersede, the statutory requirements. In this case, the Magistrate analyzed each of the paragraph (f) factors and identified which factors were used in determining that the presumptive child support amount would be unjust and/or inappropriate. The court will not disturb this determination absent clear error. Moreover, the First Department has recently affirmed the use of an income cap $250,000 in cases where the parties' incomes were in the mid to high $200,000s and they lived a comfortable upper-middle class lifestyle (see Castelloe v Fong, 203 AD3d 654, 654 [1st Dept [*6]2022]["The trial evidence reflects that the parties live a comfortable upper-middle-class lifestyle and that both parties have significant financial resources to support the use of a $250,000 cap"]; Zappin v Comfort, 155 AD3d 497, 499 [1st Dept 2017]["In setting a child support income cap of $250,000, the court cited the parties' incomes in the mid- to high $200,000s and their upper-middle class lifestyle, and thus properly considered the parties' financial resources and the child's standard of living had the marriage not dissolved"]). Respondent's income far exceeds the mid to high $200,000s and the parties certainly enjoyed, at a minimum, an upper-middle class lifestyle before the household was dissolved. Therefore, the $350,000 above the cap amount applied by the Magistrate here is appropriate and in line with recent First Department precedent.

Finally, Respondent seeks a credit of $19,000 paid to Petitioner to cover costs associated with Petitioner's move into her apartment following the parties' split but makes no showing that he sought a credit at the hearing. Thus, he is not entitled to a credit at this stage of the proceeding, which is tantamount to an appeal (Matter of Cherrez, 102 AD3d at 782). The record also indicates this amount reflects charges Petitioner made to Respondent's credit card, which Respondent then paid. Respondent makes no legal argument why the court should construe this amount as a basic child support payment. For these reasons, the request is denied. The court has considered Respondent's remaining contentions and find them unavailing. Therefore, the objection is denied.

This constitutes the decision and order of the Court.

Notify parties.

Notify Support Magistrate Norejko

October 13, 2022

Hon. Hasa A. Kingo, J.F.C. Footnotes

Footnote 1:The court notes that a reply is not provided for in the FCA, but the reply was nonetheless considered.

Footnote 2:The award of education expenses is subject to receipt of the Columbia Primary Tuition Scholarship for the child, which the child receives as a result of Petitioner's employment with Columbia University. The Support Order directs that if Petitioner fails to apply for the Columbia Primary Tuition Scholarship, 30% of the tuition paid that would otherwise be covered by the Scholarship shall be deducted from Respondent's child support obligation (Objection, Exhibit A, Support Order at 2).