Submitted - May 8, 2018
D55838
M/hu
Joseph
R. Miano, White Plains, NY (Jennifer C. Kruglinski of
counsel), for appellant.
Kaminer Kouzi & Associates LLP, New York, NY (Jennifer
Kouzi of counsel), for respondent.
RUTH
C. BALKIN, J.P. SANDRA L. SGROI JOSEPH J. MALTESE LINDA
CHRISTOPHER, JJ.
DECISION & ORDER
In a
proceeding pursuant to Family Court Act article 4, the mother
appeals from an order of the Family Court, Westchester County
(Arlene E. Katz, J.), dated September 28, 2017. The order,
insofar as appealed from, denied the mother's objections
to an order of support of the same court (Carol Ann Jordan,
S.M.) dated March 2, 2017, which determined that her basic
child support obligation was $1, 238.45 per month and that
she owed $51, 343.03 in child support arrears.
ORDERED
that the order dated September 28, 2017, is affirmed insofar
as appealed from, with costs.
The
parties, who were never married, are the parents of one child
born in March 2004. In 2006, the Family Court awarded the
mother sole custody of the child. In a decision and order
dated July 17, 2013 (hereinafter the 2013 order), this Court
affirmed so much of an order of the Family Court as denied
that branch of the father's petition which was to award
him custody of the child, but increased the father's
parental access time, resulting in each parent having equal
parenting time with the child (see Matter of Conway v
Gartmond, 108 A.D.3d 667).
Thereafter,
the father filed two petitions pursuant to Family Court Act
article 4, the first seeking to terminate his child support
obligation and the second seeking child support from the
mother. In support of his petitions, the father alleged that
there had been a change of circumstances because the 2013
order resulted in each parent having equal parenting time.
Since the mother earned substantially more than he earned,
the father maintained that the mother should be deemed the
noncustodial parent for child support purposes and should be
directed to pay child support to him. In 2016, this Court
determined that, as it was undisputed that the parties had
equal parenting time and that the mother's income
exceeded that of the father, the mother should be deemed the
noncustodial parent for child support purposes, and remitted
the matter to the Family Court, Westchester County, for a
determination of the amount of the mother's child support
obligation, if any (see Matter of Conway v Gartmond,
144 A.D.3d 795).
On
remittitur, the Support Magistrate found that the combined
parental income was $391, 141.38, 62% of which was
attributable to the mother, and that, based upon the total
combined parental income, the mother's monthly basic
child support obligation would be $3, 436. However, after
considering the financial resources of the parties and those
of the child pursuant to Family Court Act § 413(1)(f),
the Support Magistrate determined that directing the mother
to pay child support in this amount would be unjust and/or
inappropriate. As a result, the Support Magistrate capped the
parties' combined parental income at $141, 000, set the
mother's basic child support obligation at $1, 238.45 per
month, and determined that the mother owed $51, 343.03 in
child support arrears. In an order dated September 28, 2017,
the Family Court, inter alia, denied the mother's
objections to the Support Magistrate's order. The mother
appeals, contending that the Family Court failed to properly
consider factors warranting a further reduction of her child
support obligation.
"The
[Child Support Standards Act] sets forth a formula for
calculating child support by applying a designated statutory
percentage, based upon the number of children to be
supported, to combined parental income up to a particular
ceiling'' (Matter of Freeman v Freeman, 71
A.D.3d 1143, 1144; see Family Ct Act § 413;
Holterman v Holterman,3 N.Y.3d 1, 10; Matter of
Cassano v Cassano,85 N.Y.2d 649, 653). Where the
combined parental income exceeds the statutory ceiling, the
court, "'in fixing the basic child support
obligation on income over the ceiling, has the discretion to
apply the factors set forth in Family Court Act §
413(1)(f), or to apply the statutory percentages, or to apply
both"' (Matter of Peddycoart v MacKay, 145
A.D.3d 1081, 1083-1084, quoting Matter of Freeman v
Freeman, 71 A.D.3d at 1144). Contrary to the
mother's contentions, the Support Magistrate applied the
relevant factors set forth in Family Court Act ยง
413(1)(f) and sufficiently articulated the reasons for
determining the mother's child support obligation based
on a combined ...