Defendant appeals from the order of the Supreme Court, New York County (Ellen Gesmer, J.), entered March 8, 2012, which, to the extent appealed from, denied his motion for summary judgment dismissing plaintiff's cause of action for child support. Plaintiff appeals from the order of the same court and Justice, entered July 19, 2011, which, after a trial, awarded defendant primary physical custody of the parties' child during the school year and legal custody with respect to medical and educational decisions.
The opinion of the court was delivered by: Richter, J., J.
Appellate Division, First Department
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.
Decided on April 18, 2013
David Friedman,J.P. Rolando T. Acosta Dianne T. Renwick Rosalyn H. Richter Nelson S. Roman, JJ.
In this appeal, we are asked to decide whether a parent who has primary physical custody of a child in a shared custody arrangement where the time is not equally divided can be ordered to pay child support to the other parent. We conclude that based on the plain language of the Child Support Standards Act, its legislative history, and its interpretation by the Court of Appeals, a custodial parent who has the child a majority of the time cannot be directed to pay child support to a non-custodial parent.
Plaintiff Mara Rubin (the mother) and defendant Anthony Della Salla (the father) are the unmarried parents of a 9-year-old son. The mother graduated from college with a degree in speech pathology and child development. After college, she worked as a paralegal, and then attended law school for two years. She dropped out of law school and worked in the real estate field for six years. She married in 1995, had a daughter in 1997 and was subsequently divorced. The father attended college on a football scholarship and studied finance and real estate. After college, he entered the insurance field and became a successful businessman, founding and owning a title insurance company. He was married for 22 years and has three grown children. His marriage ended in divorce in 1995.
The parties, who never married, met in the early 1990s and started their relationship as platonic friends. They became romantically involved in 1998, but did not move in together. In November 2003, the mother gave birth to the couple's son. After the child was born, the mother and father continued to live separately. The mother lived with the child and her daughter in an apartment on Manhattan's Upper East Side. The father had an apartment in midtown Manhattan and a house in New Jersey.
The parties' relationship ended in 2007. Although the child lived with his mother, he continued to spend time with his father. In the beginning of 2007, the father met his current girlfriend, and by that fall, they were in a committed relationship. The time the father spent with his son progressively increased after he began his relationship with his girlfriend. In May 2008, the parties agreed that the child would reside with the father every weekend he was not traveling. At that point, the child began to spend, on average, two out of every three weekends with his father. In the summer of 2008, the child went on a two-week vacation with the father and his girlfriend. In November 2008, the father and his girlfriend moved together into an apartment, where the child has his own bedroom.
At about the same time, school officials informed the father that the mother was habitually late in getting the child to school. The father proposed that he take the child to school every day, and the mother agreed. Each morning thereafter, except when traveling on business, the father would pick his son up from the mother's apartment and timely transport him to school. During the 2008-2009 school year, the child spent most weekends with his father, as well as Thanksgiving, Christmas and nine days of his spring break. The father told the child that he and his girlfriend were expecting a baby, and their daughter was born in April 2009. After the daughter was born, the father significantly decreased his work travel and was available to spend more time with his son.
Despite her college degree and experience in real estate, the mother has not been employed since 2001. Although she claims that the father demanded that she not work, she provides no clear reason for her failure to find employment after the relationship ended in 2007. Nor has the court below made any finding that the mother is physically or mentally incapable of working.
In April 2009, the mother commenced this action seeking sole legal and residential custody of the child, and an order compelling the father to pay child support [*fn1]. The father also sought primary custody of the child. On May 27, 2011, after a ten-day trial, the court rendered its decision on custody, and an order was entered on July 19, 2011. The court awarded primary physical custody to the father during the school year, with the mother having parenting time on alternate weekends (from Friday after school to Monday morning) and every Thursday overnight. During the summer, the schedule was reversed and the child would live primarily with the mother, but would spend Thursday overnights and alternate weekends with the father. The mother would also have the child each midwinter school break, and the other school breaks were evenly divided. In addition, each parent was given two weeks with the child during the summer. With respect to legal custody, the court awarded ...