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Erin C. v. Peter H.

October 13, 2009

IN RE ERIN C., PETITIONER-RESPONDENT-APPELLANT,
v.
PETER H., RESPONDENT-APPELLANT-RESPONDENT.



Order, Family Court, New York County (Gloria Sosa-Lintner, J.), entered on or about February 2, 2007, which granted respondent father's objections to the Support Magistrate's order of December 4, 2006 to the extent of remanding the matter to the Support Magistrate for additional findings of fact regarding the subject child's actual needs, affirmed, without costs. Order, same court and Judge, entered on or about November 30, 2007, which denied both parties' objections to the Support Magistrate's order of September 14, 2007 directing respondent to pay petitioner mother basic child support of $3053.67 per month, plus $1732.75 for child care and insurance, modified, on the facts, to reduce the award for basic child support to $2740.44 per month, and otherwise affirmed, without costs.

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 Official Reports.

Saxe, J.P., Sweeny, McGuire, Renwick, Freedman, JJ.

Although respondent had a full opportunity to explore the issue of the child's needs at the first hearing, Family Court properly directed a new hearing on that issue, rather than issue an order containing findings based on the one-sided record made at the first hearing, given a remand order requiring findings as to the child's "actual" needs (28 AD3d 251 [2006]). The subsequent decision of the Support Magistrate included dicta as to whether and how the statutory formula applied in high-income cases, and also calculated the ratio of the child support he had awarded to the parties' income. However, it is clear from the analysis in the decision that, as directed, the Support Magistrate only considered the child's needs to determine the child support amount, and that he did not apply the statutory formula.

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. In calculating a basic child support obligation in an amount equal to the child's needs, and respondent's share thereof, Family Court, inter alia, appropriately considered that petitioner was responsible for all non-monetary contributions toward the child's care and well-being. Evidence of changes in the child's needs, based on petitioner's early-June 2007 remarriage, was properly rejected as speculative at the time of the late-June 2007 hearing, and as beyond the scope of the proceeding, which was limited to determining the actual needs of the child in accordance with this Court's April 2006 remand order.

However, we modify Family Court's findings as to the amount of basic child support attributable to the child's clothing and toys. Although petitioner documented average monthly payments of $496.91 for clothing and $391.32 for toys, and Family Court found petitioner's testimony about her expenses to be credible, such spending exceeds the actual needs of the child (see Matter of Michele M. v Thomas F., 42 AD3d 882, 883-884 [2007]; cf. Anonymous v Anonymous, 286 AD2d 585, 586 [2001], lv denied 97 NY2d 611 [2002]). It cannot be said that the child needs the number of items that were purchased. For example, respondent purchased 10 bibs, ranging in price from $4.49 to $11.99, at one store on one day. On another day, respondent purchased 18 items from an on-line toy store at a total price of $231.32. Accordingly, we reduce the child support attributable to clothing to $375 per month and the support attributable to toys to $200 per month.

We have considered the parties' other arguments for affirmative relief and find them unavailing. All concur except Saxe, J.P. who concurs in part and dissents in part in a separate memorandum, and Sweeny and McGuire, JJ. who dissent in part in a separate memorandum by McGuire, J. as follows: SAXE, J.P. (concurring in part and dissenting in part)

The child support award challenged here, determining that respondent father's share of basic child support comes to $3,053.67 per month, should be affirmed in its entirety. There is nothing unreasonable or insufficiently supported in the amounts calculated by Family Court for the child's support in the categories of clothing, toys, or entertainment to justify the kind of tinkering in which my colleagues have engaged. As to the dissent's proposal to reduce from one half to one third the child's share of petitioner mother's monthly expenses for rent, utilities, and automobile, it is both arbitrary and unsupportable.

On a previous appeal in this matter (28 AD3d 251 [2006]), this Court reversed and remanded an earlier child support award that had been calculated by applying the 17% rate dictated by the Child Support Standards Act (Family Ct Act § 413) to the parties' entire combined income of approximately $375,000. While the CSSA requires the standard rate to be applied to the first $80,000 in combined parental income regardless of the child's actual needs (Family Ct Act § 413[1][c][2]), when child support beyond that amount is contemplated, the court must consider a variety of factors in determining the amount of income in excess of $80,000 to which the percentage will be applied (Family Ct Act § 413[1][f]).

Of course, the CSSA applies regardless of whether the parties were married or ever lived together (see Matter of Jones v Reese, 227 AD2d 783, 784 [1996]). Although the requisite consideration of "[t]he standard of living the child would have enjoyed had the marriage or household not been dissolved" (Family Ct Act § 413[1][f][3]) may apply a bit differently when the parties never lived together, both parents' standards of living are appropriately taken into consideration in determining, as we directed on the prior appeal, "the amount that is required for the child to live an appropriate lifestyle" (28 AD3d at 252 [emphasis added]).

The Support Magistrate held a hearing to consider the child's actual needs and the amount required for the child to live an appropriate lifestyle so as to determine the appropriate amount to award for child support beyond the standard percentage of the parents' first $80,000 in income. He heard petitioner's testimony as to her expenses, some of which, such as rent and utilities, are easily proven down to the penny, others of which, such as entertainment, necessarily require a certain amount of averaging and estimating. Petitioner also submitted large amounts of documentation, including spreadsheets that she created for each month from October 2005 to April 2007 using bills and some store receipts. She did not establish by individual store receipts all payments made in all categories of her expenses; in some categories, such as clothing and toys, she established some expenses paid by her and by her mother through debit card bill references to transactions at particular stores. In the category of entertainment, rather than accumulating and submitting bills and receipts for every activity, petitioner explained that she arrived at the $300 per month figure by averaging the amount it cost her to go with the child on vacation, and to take him to the circus, the zoo, concerts, and museums, as well as certain other activities such as birthday parties for the child.

Two of my colleagues, Justices Freedman and Renwick, now vote to affirm the portion of the award that attributed one half of petitioner's rent, utilities, and automobile expenses to child support, as well as the amounts awarded for child support broken down into the categories of food, cleaning, education, laundry, haircuts, and photographs. However, these two Justices vote to reduce the amount calculated as appropriate in the categories of clothing and toys. My two other colleagues, Justices McGuire and Sweeny, also vote to reduce the amount awarded in the categories of clothing and toys, but in addition, would reduce to a one-third share the amount of petitioner's rent, utilities and automobile expenses attributed to the child, and as to the amount allocated to entertainment, would cut the monthly allowance from $300 to $150. Therefore, my four colleagues all agree that the amounts awarded for the child's clothing and toys should be reduced and that the amounts awarded for food, cleaning, education, laundry, haircuts and photographs should be affirmed. They are evenly split on the appropriate percentage of rent, utilities, and auto expenses to attribute to the child, as well as the entertainment allowance.

I concur with Justices Freedman and Renwick insofar as they vote to affirm the portion of the award allocating to the child one half of petitioner's rent, utilities, and automobile expenses. As to her automobile expenses, there is nothing erroneous about such an allocation. Petitioner's inability to provide a numerical, hour-by-hour or mile-by-mile breakdown of how her automobile is used does not invalidate the 50% estimate. Nor was Family Court bound to determine how the custodial parent made use of her vehicle prior to the child's birth in comparison to how she uses it now. Indeed, regardless of how her life was lived previously, a single parent with a young child frequently spends most, if not all, of her driving time doing things for the direct or indirect benefit or in the interests of the child. The 50% allocation was reasonable and proper.

Similarly, the Support Magistrate did not err in attributing to the child one half of the cost of petitioner's rent. In determining what portion of the rent should be allocated to a child, the finder of fact need not determine what the custodial parent had paid for rent when living alone before having a child. Indeed, the custodial parent may still live in the same apartment she lived in before having a child and still be entitled to a portion of the rent as child support. Once a child lives in a home, that child's presence changes the allocation and usage of space; in many homes a child and the furnishings and paraphernalia acquired for his or her care effectively take over most of the premises. This is not to say that a petitioner must establish square-footage usage in order to claim a percentage of the rent as child support. Rather, it is simply to illustrate that the dissent seeks to impose an untenable burden on a custodial parent who is ...


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