Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Massey v. Evans

October 2, 2009

IN THE MATTER OF TAKIYAH S. MASSEY, PETITIONER-RESPONDENT,
v.
DAVID A. EVANS, RESPONDENT-APPELLANT.



Appeal from an order of the Family Court, Jefferson County (Richard V. Hunt, J.), entered November 28, 2008 in a proceeding pursuant to Family Court Act article 5-b. The order, inter alia, denied the objections of respondent to the order of the Support Magistrate.

The opinion of the court was delivered by: Peradotto, J.

PRESENT: MARTOCHE, J.P., SMITH, PERADOTTO, CARNI, AND GREEN, JJ.

OPINION AND ORDER

It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.

The sole issue presented in this appeal is whether military allowances for food and housing constitute "income" for the purposes of calculating a parent's child support obligation. Respondent father contends that Family Court erred in determining that his basic allowances for housing and subsistence (respectively, BAH and BAS), which he receives as a member of the United States Army, are income for child support purposes. We reject that contention, and we thus conclude that the order should be affirmed.

Facts and Procedural History

Petitioner mother commenced this proceeding seeking a determination that respondent is the father of her then-two-year-old child and seeking an award of child support. After an order of filiation was entered, the parties stipulated that the mother earns $14,226 per year and that the father receives base pay from the military in the amount of $22,186.80 per year. The parties further stipulated that, in addition to his base pay, the father receives BAH in the amount of $10,776 per year and BAS in the amount of $3,533.16 per year. BAH is a monthly sum paid to members of the military who do not reside in government-supplied housing (see 37 USC § 403 [a] [1]; Army Regulation 37-104-4, § 12-1). The amount of BAH, which is intended to offset the cost of civilian housing, varies according to the member's pay grade, geographic location, and dependency status (see 37 USC § 403 [a] [1]; Army Regulation 37-104-4, § 12-2). BAS is an additional monthly sum paid to active duty members to subsidize the cost of meals purchased for the benefit of the individual member on or off base (see 37 USC § 402 [a] [1]; Army Regulation 37-104-4, § 11-3). The amount of BAS is based upon average food costs as determined by the federal government (see 37 USC § 402 [b]).

In lieu of a formal hearing, the parties submitted memoranda of law on the only remaining issue, i.e., whether and to what extent the court should include BAH and BAS in the income of the father in calculating his child support obligation. The Support Magistrate concluded, inter alia, that BAH and BAS constitute income for child support purposes, reasoning that the allowances are additional resources available to the father and intended to offset the cost of his meals and lodging. The father filed written objections to the order of the Support Magistrate, contending that, inter alia, BAS and BAH do not fall within the Family Court Act's definition of income because the allowances are excluded from income for federal tax purposes and are not for the father's personal use or benefit. The court denied the father's objections and affirmed the order of the Support Magistrate.

Discussion

The specific question of whether military allowances may be included in a parent's income for child support purposes has never been addressed by a New York court. The Child Support Standards Act (CSSA), codified in Domestic Relations Law § 240 and Family Court Act § 413, establishes a formula for calculating a parent's basic child support obligation. One of the primary goals of the legislation is "to establish equitable support awards that provide a 'fair and reasonable sum' for the child's needs within the parents' means" (Matter of Graby v. Graby, 87 NY2d 605, 609, rearg denied 88 NY2d 875, quoting Family Ct Act § 413 [1] [a]), and to enable children to "share in the economic status of both their parents" (Governor's Approval Mem, Bill Jacket, L 1989, ch 567, at 13). To that end, the amount of child support required by the statute is based in large part on a determination of parental income (see § 413 [1] [c]). Family Court Act § 413 (1) (b) (5) provides that a parent's "income" includes, but is not limited to, gross income as reported on the most recent federal income tax return and, to the extent not reflected in that amount, "income received" from eight enumerated sources such as workers' compensation, disability benefits, unemployment insurance benefits, and veterans benefits.

The statute also affords courts considerable discretion to attribute or impute income from "such other resources as may be available to the parent" (Family Ct Act § 413 [1] [b] [5] [iv]; see also Irene v Irene [appeal No. 2], 41 AD3d 1179, 1180; Matter of Hurd v Hurd, 303 AD2d 928; Matter of Klein v Klein, 251 AD2d 733, 735).

Such resources include, but are not limited to, "meals, lodging, memberships, automobiles or other perquisites that are provided as part of compensation for employment to the extent that such perquisites constitute expenditures for personal use, or which expenditures directly or indirectly confer personal economic benefits[ and]... fringe benefits provided as part of compensation for employment" (§ 413 [1] [b] [5] [iv]).

In our view, the allowances that the father receives from the military fall within the CSSA's broad definition of income. Pursuant to the plain language of the statute, parental income "shall not be limited to" taxable income or to the specifically enumerated sources of compensation (Family Ct Act § 413 [1] [b] [5] [emphasis added]). The legislative history of the statute further supports our conclusion that the definition of "income" should be broadly construed to include the allowances at issue. For example, the Governor's Program Bill Memorandum notes that the statute "[d]efines 'income' as gross income for federal tax purposes and income from all other sources (e.g., workers' compensation, disability benefits, unemployment insurance benefits, social security benefits, interest on state and municipal bonds, veterans' benefits, retirement benefits)... plus, at the discretion of the court, imputed income" (Bill Jacket, L 1989, ch 567, at 8 [emphasis added]).

The father contends that BAH and BAS do not constitute "income" within the meaning of Family Court Act § 413 (1) (b) (5) because the allowances are excluded from income for federal income tax purposes (see Internal Revenue Code [26 USC] § 134 [a]). We reject that contention. As courts in other states have noted in rejecting similar contentions, the purposes underlying the federal tax code and child support statutes are different. The objective of the former is to calculate an individual's taxable income, while the objective of the latter is to determine the amount that a parent can afford to pay for the support of his or her child (see e.g. State of La., Dept. of Social Servs. ex rel. D.F. v L.T., 934 So 2d 687, 691-692 [La]; Alexander v Armstrong, 415 Pa Super 263, 269, 609 A2d 183, 186). As noted above, the CSSA does not limit a parent's income to the amount reported on the parent's income tax return (see Family Ct Act § 413 [b] [5] [i]). To the contrary, the statute gives courts the "discretion to look beyond tax returns to determine actual expenses and income" (Governor's Program ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.