| Matter of Marcklinger v Liebert |
| 2011 NY Slip Op 07331 [88 AD3d 1114] |
| October 20, 2011 |
| Appellate Division, Third Department |
| In the Matter of Paul Marcklinger, Appellant, v Joanne Liebert,Respondent. |
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Malone Jr., J. Appeal from that part of an order of the Family Court of Saratoga County(Abramson, J.), entered July 8, 2010, which, in a proceeding pursuant to Family Ct Act article 4,denied petitioner's objections to the calculation of his child support obligation.
On the prior appeal in this child support case, we rejected petitioner's contention that theSupport Magistrate improperly considered the parties' combined income exceeding $80,000 inthe calculation of the basic child support obligation for their unemancipated child, but remittedthe matter to Family Court for an articulation of a rationale for using the statutory percentagerather than the so-called "paragraph (f)" factors or a combination of both (Matter of Marcklinger v Liebert, 72AD3d 1431 [2010]). Upon remittal, the Support Magistrate recalculated petitioner's supportobligation, using a higher adjusted gross income for respondent as petitioner had previouslyrequested and in accordance with Family Court's prior order, which reflected respondent's receiptof maintenance payments from petitioner. This resulted in petitioner's pro rata share beingdecreased to 57.65% and respondent's share being increased to 42.35%. The Support Magistratethen applied the statutory percentage set forth in the Child Support Standards Act (seeFamily Ct Act § 413 [hereinafter CSSA]) to the parties' total combinedincome—first to the portion up to $80,000[FN1]and then to the [*2]portion that exceeds that amount—anddetermined that petitioner's pro rata share amounted to $256 per week. Petitioner filed objectionsto the order, which were rejected by Family Court. Petitioner now appeals.[FN2]
Petitioner contends that the Support Magistrate erred by considering the parties' combinedincome over $80,000 in calculating the basic child support obligation. We disagree. The CSSAsets forth a three-part process for determining the amount of the basic child support obligation.First, the court determines the parties' total combined income (see Family Ct Act §413 [1] [b]). Second, the court multiplies that amount, up to $80,000, by the "appropriate childsupport percentage" and prorates the amount "in the same proportion as each parent's income isto the combined parental income" (Family Ct Act § 413 [1] [c] [1], [former (2)]). Third, incases such as this one, where the combined parental income exceeds $80,000, "the court shalldetermine the amount of child support for the amount of the combined parental income in excessof [$80,000] through consideration of the factors set forth in [Family Ct Act § 413 (1) (f)]and/or the child support percentage" (Family Ct Act § 413 [1] [c] [3]; see Matter ofCassano v Cassano, 85 NY2d 649, 653 [1995]).
To the extent that petitioner argues that the Support Magistrate erred by considering theparties' combined income over $80,000 in calculating the basic child support obligation, wedisagree.[FN3]The plain language of the statute requires the court to consider the total amount of the combinedparental income in every case. What is within the court's discretion is the manner in which itcalculates the basic child support obligation on the portion that exceeds $80,000 (seeFamily Ct Act § 413 [1] [c] [3]; see Matter of Cassano v Cassano, 85 NY2d at653). After completing the three-step calculation, the court "may adjust the amount calculatedonly if, after examining the 'paragraph (f)' factors, it finds that the noncustodial parent's share isunjust or inappropriate . . . [in which case] it must order the noncustodial parent topay an amount it deems just and appropriate and is required to set forth in its decision the'paragraph (f)' factors it considered" (Holterman v Holterman, 3 NY3d 1, 14 [2004] [internal quotationmarks and citations omitted]; see Family Ct Act § 413 [1] [f]). In that regard, weare not persuaded by petitioner's contentions to the extent that he argues that the SupportMagistrate again failed to sufficiently articulate his reasons for not reducing petitioner's pro ratashare of the basic child support obligation through application of the so-called paragraph (f)factors, including the actual needs of the child, to the parties' income in excess of $80,000.
In his amended order, the Support Magistrate reasoned that the application of the statutorypercentage yielded an amount that was "neither unjust nor inappropriate" considering that (1) thechild would have enjoyed an enhanced standard of living had the parties remained [*3]married, (2) the $80,000 cap had not been adjusted for inflationsince 1989, (3) the income disparity between the parties, and (4) petitioner did not offer anyreason for a contrary finding. This articulation of reasoning indicates that the Support Magistrate"carefully considered the parties' circumstances and . . . found no reason [to] depart[] from the prescribed percentage" (Matter of Cassano v Cassano, 85 NY2d at 655).Moreover, although petitioner faults respondent for not submitting evidence of the child's needs,application of the CSSA "creates a rebuttable presumption that the guidelines contained thereinwill yield the correct amount of child support" and, if petitioner believed that his presumptive prorata share was unjust or inappropriate, it was his burden to establish such (Matter of Smith v Evans, 75 AD3d603, 603 [2010]; see Family Ct Act § 413 [1] [f]; Matter of Seelow v Seelow, 81 AD3d1188, 1189-1190 [2011]).
Finally, to the extent not specifically addressed herein, we have considered petitioner'sremaining contentions and find them to be either unpreserved or without merit.
Mercure, J.P., Kavanagh, McCarthy and Egan Jr., JJ., concur. Ordered that the order isaffirmed, without costs.
Footnote 1: We note that, although effectiveJanuary 31, 2010 Family Ct Act § 413 (1) (c) (2) was amended to change this figure to$130,000, because this proceeding was commenced prior to that time, the Support Magistratecorrectly applied the former figure (seeMatter of Seelow v Seelow, 81 AD3d 1188, 1189 n 2 [2011]).
Footnote 2: Family Court also deniedpetitioner's objection to a separate order of the Support Magistrate that denied petitioner's requestfor an order requiring the Support Collection Unit to retain any funds it collected from him.However, petitioner specifically limited his notice of appeal and does not purport to appeal fromthat part of Family Court's order.
Footnote 3: We note that this Courtpreviously rejected that argument upon petitioner's prior appeal (72 AD3d at 1432).