| Matter of Byrne v Byrne |
| 2007 NY Slip Op 10150 [46 AD3d 812] |
| December 18, 2007 |
| Appellate Division, Second Department |
| In the Matter of Denise Byrne, Appellant, v James W.Byrne, Respondent. |
—[*1] James W. Byrne, East Northport, N.Y., respondent pro se.
In a child support proceeding pursuant to Family Court Act article 4, the mother appeals, aslimited by her brief, from so much of an order of the Family Court, Suffolk County (Simeone, J.),dated March 28, 2007, as, upon sustaining the father's objection to so much of an amended orderof the same court (Livrieri, S.M.), dated December 29, 2006, as granted her petition for anupward modification of the father's child support obligation to the extent of increasing thatobligation to the sum of $635 per week, granted her petition for an upward modification of thefather's child support obligations only to the extent of directing the father to pay his pro rata shareof summer camp, tutoring, and unreimbursed medical expenses for the children.
Ordered that the order is affirmed insofar as appealed from, with costs.
The parties were divorced by judgment dated November 14, 1995. Under the terms of anagreement which was incorporated but not merged in the judgment of divorce, the mother wasawarded custody of the parties' three children, and the father was required to pay child support inthe sum of $300 per week. The parties acknowledged in their agreement that the father's childsupport obligation was the same as it would have been had it been calculated pursuant to theChild Support Standards Act (hereinafter the CSSA).
More than 10 years after the parties' divorce, the mother sought an upward modification ofthe father's child support obligation. By order dated May 22, 2006, the Support Magistrategranted the mother's petition, concluding that she had established the existence of an [*2]unanticipated change in circumstances warranting an upwardmodification of the father's child support obligation. Applying the CSSA guidelines to the totalcombined income of the parents, the Support Magistrate increased the father's weekly supportobligation to the sum of $636 per week. In an order dated September 27, 2006, the Family Courtsustained the father's objection to the support order to the extent of remitting the matter to theSupport Magistrate to elaborate on those factors articulated in Family Court Act § 413 (f)which would warrant an application of the CSSA guidelines to the parties' total combinedincome over $80,000, and to consider the imputation of income to the mother for the use of acompany car. The Support Magistrate issued revised findings and an amended order which, interalia, imputed additional income to the mother, but again granted the mother's petition for anupward modification of the father's child support obligation, amending the prior support orderonly to the extent of recalculating the father's support obligation to be $635 per week rather than$636 per week.
The father subsequently filed objections to the amended order of support. In an order datedMarch 28, 2007, the Family Court concluded that it was unjust and inappropriate to apply theCSSA guidelines to the parties' income over $80,000 because it resulted in increasing the father'ssupport obligation by more than 100%, despite the fact that the mother's income had tripled, andshe earned significantly more than the father. The court thus sustained the father's objection to somuch of the amended order of support as increased his support obligation from the sum of $300per week to the sum of $635 per week. However, upon sustaining the father's objection, the courtgranted the mother's petition for an upward modification of support to the extent of requiring himto contribute his pro rata share of summer camp expenses for the two younger children, and hispro rata share of tutoring expenses and unreimbursed medical expenses for all of the children.
The CSSA sets forth a formula for calculating child support by applying a designatedstatutory percentage, based upon the number of children to be supported, to combined parentalincome up to a ceiling of $80,000 (see Family Ct Act § 413; Holterman v Holterman, 3 NY3d1, 10-11 [2004]; Matter of Cassano v Cassano, 85 NY2d 649, 652 [1995]). Where,as here, combined parental income exceeds $80,000, the court has the discretion to apply thefactors set forth in Family Court Act § 413 (1) (f), or to apply the statutory percentages, orto apply both in fixing the basic child support obligation on income over $80,000 (Matter ofCassano v Cassano, 85 NY2d at 655). Moreover, regardless of whether combined parentalincome is more or less than $80,000, the court may, in its discretion, disregard the statutoryformula where it would result in a child support obligation which is unjust and inappropriate(see Family Ct Act § 413 [1] [g]; Matter of Cassano v Cassano, 85 NY2dat 654; Hammack v Hammack, 20AD3d 700 [2005]).
Contrary to the mother's contention, the Family Court did not improvidently exercise itsdiscretion in concluding that it would be unjust and inappropriate to apply the statutorypercentage to the total combined income of the parents. As correctly noted by the Family Court,the application of the statutory percentage to the full amount of combined income results inincreasing the father's support obligation by more than 100%. Although the evidence presented atthe hearing demonstrated that the father's income doubled in the years following the divorce, themother's income tripled, and she earns significantly more than the father. Moreover, the recordalso reveals that the father has remarried and is providing support for an additional child. Underthese circumstances, the Family Court's decision not to apply the statutory percentage to the totalcombined income of the parents in order to increase the father's basic support obligation was aproper exercise of discretion (see Matterof Taraskas v Rizzuto, 38 AD3d 910 [2007]; Kammerer v Kammerer, 38 AD3d 846 [2007]). Furthermore, thecourt's determination that it would be inappropriate [*3]toincrease the father's basic support obligation under the CSSA by applying the statutorypercentage to combined parental income over $80,000 is not inconsistent with its determinationthat there had been an unanticipated change of circumstances warranting an upward modificationof the support obligation set forth in the parties' 1995 agreement. The Family Court's finding thatthere had been an unanticipated change of circumstances was based upon evidence, inter alia,that the mother was required to enroll the children in summer camp because she was no longerprovided with child care by her employer, and that one of the children required therapy forpost-traumatic stress as a result of her involvement in an automobile accident. The Family Courtproperly exercised its discretion by limiting the upward modification of the father's supportobligation so as to require him to pay his pro rata share of these unanticipated expenses, as wellas his pro rata share of tutoring and unreimbursed medical expenses.
The mother's contention that the Family Court should have determined the father's basicchild support obligation de novo because the parties' 1995 agreement did not contain all of thespecific "opt out" recitals mandated by the CSSA is without merit. Since the agreement specifiedthat the father's basic support obligation under the CSSA was in the sum of $300 per week, andthat the amount of child support provided for in the agreement was equal to his basic childsupport obligation, it is clear that the parties did not intend to opt out of the CSSA guidelines.Thus, the agreement was not required to contain the additional recitals setting forth, inter alia, theparties' reasons for not utilizing the amount of support that would have been calculated under theCSSA (see Fasano v Fasano, 43AD3d 988 [2007]; Matter ofHuddleston v Huddleston, 14 AD3d 511 [2005]; Pellot v Pellot, 305 AD2d 478[2003]; Matter of Wolf v Wolf, 293 AD2d 811 [2002]). Krausman, J.P., Fisher,Angiolillo and Balkin, JJ., concur.