| Matter of Krukenkamp v Krukenkamp |
| 2008 NY Slip Op 06570 [54 AD3d 345] |
| August 5, 2008 |
| Appellate Division, Second Department |
| In the Matter of Irvin B. Krukenkamp, Appellant, v DeniseJ. Krukenkamp, Respondent. |
—[*1] Lefkowitz & Poulos, Hauppauge, N.Y. (Deborah Poulos of counsel), forrespondent.
In a support proceeding pursuant to Family Court Act article 4, the father appeals from (1) anorder of the Family Court, Suffolk County (Simeone, J.), dated May 16, 2007, which sustainedthe mother's objection to an order of the same court (Raimondi, S.M.), dated January 17, 2007,inter alia, directing the mother to pay him child support in the sum of $325 per week, andthereupon vacated the order dated January 17, 2007, and (2) an order of the same court datedAugust 8, 2007, which denied his objection to so much of an order of the same court dated June1, 2007, as directed the mother to pay him child support in the sum of only $100 per week.
Ordered that the order dated May 16, 2007, is reversed, without costs or disbursements, themother's objection to the order dated January 17, 2007, is denied, the order dated January 17,2007, is amended to reflect that the mother's child support obligation shall be the sum of $338per week, and the order dated August 8, 2007, is vacated; and it is further,
Ordered that the appeal from the order dated August 8, 2007, is dismissed as academic,without costs or disbursements, in light of our determination on the appeal from the order datedMay 16, 2007.[*2]
The father, joint custodial parent of the subject child,filed a petition seeking child support from the mother after the child, who had resided with themother since the parties' divorce in 1997, began residing with him in January 2005. The mother'schild support obligation was initially set, after a hearing, at $325 per week. Upon the mother'sobjection to this support order, the Family Court vacated the order, determining, inter alia, thatthe Support Magistrate erred in including in the mother's income the maintenance paymentsmade to her by the father, and reported on the mother's most recent tax return. Upon remittitur,the Support Magistrate rendered a second support order, dated June 1, 2007, this time excludingfrom the calculation of the mother's income for purposes of awarding child support, themaintenance payments she received, and upon considering the factors set forth in Family CourtAct § 413 (1) (f), set the mother's child support obligation at $100 per week.
The Family Court's determination that, for purposes of awarding child support, the SupportMagistrate erred in including, as income to the mother, the maintenance payments she receivedfrom the father, was incorrect. The Child Support Standards Act requires the court to establishthe parties' basic child support obligation as a function of the "gross (total) income" that is, orshould have been, reflected on the party's most recently filed income tax return (Family Ct Act§ 413 [1] [b] [5] [i]; see Miller vMiller, 18 AD3d 629, 631 [2005]; Bains v Bains, 308 AD2d 557, 559 [2003];McNally v McNally, 251 AD2d 302, 303 [1998]). Since, in the present case, the totalincome reported on the mother's most recently filed tax return included the maintenancepayments she had received from the father that year, in the amount of $100,000, that sum wasimproperly excluded from her income for the purpose of calculating her child support obligation(see Family Ct Act § 413 [1] [b] [5] [i]; Matter of Diamond v Diamond,254 AD2d 288, 289 [1998]; Matter of Baldino v Baldino, 232 AD2d 480, 480-481[1996]). The cases relied upon by the Family Court are inapposite because the maintenanceaward, in those cases, was made concurrently with the child support award, and thus, theprospective maintenance payments, when "viewed at the time of the decision, did not fall withinthe definition of 'gross (total) income as should have been or should be reported in the mostrecent federal income tax return' " (Harrison v Harrison, 255 AD2d 490, 491 [1998],quoting Domestic Relations Law § 240 [1-b] [b] [5] [i]; see Shapiro v Shapiro, 35 AD3d585, 586 [2006]; Lee v Lee, 18AD3d 508, 510 [2005]).
Although it is not possible to reinstate the initial order of the Support Magistrate due to anerror in the calculation of the FICA taxes paid by the father, rather than remitting the matter tothe Family Court, Suffolk County, to recalculate the mother's child support obligation, we do soin the interest of judicial economy. We conclude, in light of the factors set forth in Family CourtAct § 413 (1) (f) (1) through (10), and particularly the ample financial resources of thefather, the fact that the gross income of the mother is substantially less than that of the father, andthe mother's provision of support for other family members, that it would be inappropriate toapply the statutory percentage to the parents' combined income in excess of $80,000. We thuscalculate the mother's child support obligation to be $338 per week.
The father's remaining contentions either have been rendered academic by this determinationor are without merit. Mastro, J.P., Rivera, Angiolillo and McCarthy, JJ., concur.