Calendar Date: February 16, 2017
Nussbaum, New Paltz, for appellant-respondent.
Blatchly & Simonson, PC, New Paltz (Bruce D. Blatchly of
counsel), for respondent-appellant.
Ingram, Kingston, attorney for the child.
Mariane B. Cocose, Bearsville, attorney for the children.
Before: Peters, P.J., Lynch, Rose, Devine and Mulvey, JJ.
MEMORANDUM AND ORDER
appeal from a judgment of the Supreme Court (Mott, J.),
entered October 16, 2015 in Ulster County, granting, among
other things, equitable distribution of the parties'
marital property, upon a decision of the court.
(hereinafter the wife) and defendant (hereinafter the
husband) were married in 1992 and have four children (born in
1993, 1999, 2003 and 2007). The wife moved out of the marital
home in March 2013 and commenced this action for a divorce in
May 2013 seeking joint custody of the minor children, child
and spousal support, equitable distribution of marital
property and counsel fees. The husband answered and
counterclaimed for custody, child support and equitable
distribution. Supreme Court issued a pendente lite order
awarding child support payable by the wife to the husband and
spousal support payable by the husband to the wife in nearly
equal amounts, thus neither party was obligated to pay
support to the other. The court, after a hearing, also issued
a temporary custody order granting the parties joint legal
custody with primary physical custody to the husband and
parenting time to the wife three days each week with an
alternating fourth day every two weeks. The court also
awarded the wife parenting time during two three-week periods
in the summer. In August 2014, parenting time was modified to
provide that "the wishes of the minor child [born in
1999] to remain with one parent or the other shall not be
withheld by either party." Further, the parties agreed
during the proceeding to alternate parenting time during the
a nonjury trial, Supreme Court issued a judgment of divorce
which, as relevant here, granted the parties joint legal
custody with the husband having primary physical custody of
the three minor children "with the parties to share
physical custody... as set forth in the temporary custody
orders." The wife was awarded retroactive and continuing
child support, expert and counsel fees and the ability to
declare one of the children as a dependent for tax purposes.
Each party was denied a distributive award based on the
other's enhanced earnings. Both parties now appeal.
while neither party challenges Supreme Court's allotment
of parenting time, the mother challenges the court's
designation of the father as the "primary"
custodian. Where, as here, the parties share physical
custody, the court can determine the "primary custodial
parent" for purposes of the Child Support Standards Act
(see Domestic Relations Law § 240 [1-b]
[hereinafter CSSA]) "based upon the reality of the
situation by determining who has physical custody of the
children for a majority of the time" (Riemersma v
Riemersma, 84 A.D.3d 1474, 1476  [internal
quotation marks and citations omitted]; see Bast v
Rossoff, 91 N.Y.2d 723, 728 ). If parenting time
is shared equally, the noncustodial parent for purposes of
the CSSA is the parent with the greater income (see
Matter of Mitchell v Mitchell, 134 A.D.3d 1213, 1214
). Here, the temporary order held that the parties
shared parenting time "on an approximate 50-50
basis" and Supreme Court ordered that parenting time
continue in this manner. In the judgment of divorce, the
court continued this custodial order but, when calculating
child support, recognized the husband's greater income
and concluded that, based upon "the near equal
division of custodial time, " the wife was entitled to
child support. Based on the court's findings with regard
to the parenting schedule, which neither party challenges, we
find that Supreme Court should not have concluded that the
husband was the primary custodial parent (see Shamp v
Shamp, 133 A.D.3d 1213, 1214-1215 ). Further,
because the court effectively and properly deemed the husband
to be the noncustodial parent based on his greater income
(see Matter of Mitchell v Mitchell, 134 A.D.3d at
1216), we find that, on this record, it was harmless error.
Nevertheless, we modify the judgment accordingly.
both parties challenge Supreme Court's determination with
regard to child support. When calculating a party's child
support obligation in a shared custody situation, the court
must employ the three-step framework of the CSSA (see
Bast v Rossoff, 91 N.Y.2d at 726; Matter of Ross v
Manley, 135 A.D.3d 1104, 1106 ). First, the court
must calculate the parties combined parental income pursuant
to Domestic Relations Law § 240 (1-b) (b) (5) (i).
Second, that amount, up to the statutory cap, is multiplied
by the specified percentage based upon the number of children
(see Domestic Relations Law § 240 [1-b] [b] 
[i]; [c] , ). That sum is then allocated in accordance
with each parent's pro rata share of the combined
parental income (see Domestic Relations Law §
240 [1-b]  [iii]; Bast v Rossoff, 91 N.Y.2d at
726-728). Third, where, as here, the combined parental income
exceeds the statutory cap, the court must "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 [Domestic Relations
Law § 240 (1-b) (f)] and/or the child support
percentage" (Domestic Relations Law § 240 [1-b] [c]
; see Holterman v Holterman, 3 N.Y.3d 1, 11
; Bast v Rossoff, 91 N.Y.2d at 727;
Vantine v Vantine, 125 A.D.3d 1259, 1262 ).
Put differently, the court must apply either the percentage
or statutory factors to the excess income, "or some
combination of the two" and, "[i]n doing so, the
trial court must set forth a record articulation for
deviating or not deviating from the statutory guideline and
relate that articulation to the statutory factors"
(Moschetti v Moschetti, 277 A.D.2d 838, 840 ;
see Petersen v Petersen, 125 A.D.3d 1234, 1235
Supreme Court determined that the parties combined parental
income was $203, 400 and the statutory cap, at the time, was
$141, 000 (see Domestic Relations Law § 240
[1-b] [c] ). After applying the statutory percentage to
the statutory cap, the court determined that the presumptive
amount of child support was $40, 890, that the husband's
share of that amount - 68% - yielded monthly child support in
the amount of $2, 317.10 and that the wife's share - 32%
- yielded monthly child support in the amount of $1, 090.40
. Next, the court applied the statutory
percentage against the combined earnings in excess of the
statutory cap and calculated the additional child support on
the excess income to be $18, 096, with the husband's pro
rata share to be $1, 025.40 each month and the wife's to
be $482.60 each month. After completing these calculations,
Supreme Court determined that the husband - "[a]s the
monied spouse and the non-custodial parent for purposes of
child support during the period prior to trial" - was
obligated to pay child support in the amount of $2, 317.10
for the period between the date that the wife first sought
support and the date that the custody order was modified
. Prospectively, the court awarded the
wife $1, 158.55 each month, "represent[ing] fifty per
cent of the [h]usband's child support obligation."
The court declined to award any child support based on the
combined parental income in excess of the statutory cap,
because it was "unnecessary, " based on the
application of certain factors.
we agree with the wife's argument that Supreme
Court's calculation of child support was incorrect and
that a modification of the husband's support obligation
is necessary. First, as to the combined parental income in
excess of the statutory cap, Supreme Court determined to
award no support because: (1) based on the equitable
distribution award, the husband would be responsible for
paying a mortgage; (2) the husband supported the oldest
child; (3) the husband paid for the children's health
insurance; (4) each party could claim a tax deduction; and
(5) "the record reflects that both parents are...
willing to contribute the amount of their respective child
support obligations, and to maintain ...