| Matter of Gartmond v Conway |
| 2008 NY Slip Op 07129 [54 AD3d 952] |
| September 23, 2008 |
| Appellate Division, Second Department |
| In the Matter of Joy Gartmond, Respondent, v ThomasConway, Appellant. |
—[*1] Bender, Miano & Colangelo, LLP, White Plains, N.Y. (Arlene S. Colangelo of counsel), forrespondent.
In a child support proceeding pursuant to Family Court Act article 4, the father appeals froman order of the Family Court, Westchester County (Horowitz, J.), entered September 10, 2007,which granted his objections to so much of an order of the same court (Jordan, S.M.) entered July12, 2007, as, after a hearing, directed him to pay the sum of $2,373 in monthly child support,only to the extent of remitting the matter to the Support Magistrate, in effect, to articulate themanner in which the Support Magistrate calculated the amount of child support, and otherwisedenied his objections.
Ordered that on the Court's own motion, so much of the notice of appeal as purports toappeal as of right from that part of the order entered September 10, 2007, which remitted thematter to the Support Magistrate, in effect, to articulate the manner in which the SupportMagistrate calculated the amount of child support, is deemed an application for leave to appealfrom that part of the order, and leave to appeal is granted (see Family Ct Act §1112 [a]; Matter of Schmitt v Berwitz, 228 AD2d 604 [1996]); and it is further,
Ordered that the order entered September 10, 2007 is modified, on the law, on the facts, andin the exercise of discretion, by deleting the provisions thereof remitting the matter to theSupport Magistrate and otherwise denying the father's objections, and substituting thereforprovisions sustaining the [*2]father's objections to the extent ofreducing his obligation to pay child support from the sum of $2,373 to the sum of $1,006 permonth, and directing him to pay 49% of the expenses for child care, including but not limited tonursery school, day camp, and home child care, and otherwise denying the objections; as somodified, the order entered September 10, 2007 is affirmed, with costs to the father.
On review of the father's objections to the Support Magistrate's order which, inter alia,directed him to pay child support in the sum of $2,373 per month, the Family Court remitted thematter to the Support Magistrate, in effect, to articulate the manner in which the SupportMagistrate calculated that sum. At the same time, the Family Court indicated that, on the merits,the father's objections to the sum of $2,373 in child support, as fixed by the Support Magistrate,did "not appear to be something that would change the amount of his obligation" once theSupport Magistrate articulated her reasons for setting that amount. We agree that the SupportMagistrate should have articulated the manner in which she calculated the amount of the father'schild support obligation, and should have explained the application of the "precisely articulated,three-step method for determining child support" pursuant to the Child Support Standards Act(Matter of Cassano v Cassano, 85 NY2d 649, 652 [1995]; see Sirgant v Sirgant, 35 AD3d437, 438 [2006]). However, in light of the fact that the record has been sufficientlydeveloped, we deem it appropriate in the interest of efficiency and judicial economy to avert aremittal to the Support Magistrate, grant leave to appeal from that part of the Family Court'sorder which remitted the matter to the Support Magistrate (see Family Ct Act §1112 [a]; Matter of Schmitt v Berwitz, 228 AD2d 604 [1996]), and conduct our ownreview of the record (see Family Ct Act § 413; Lee v Lee, 18 AD3d 508, 511 [2005]).
Using the parties' respective gross incomes for the year 2006, as the Support Magistrateevidently did, the first step is calculation of the "combined parental income" (Family Ct Act§ 413 [1] [b] [4]—[5]). In that year, the mother earned $182,390 and the fatherearned $176,333. After making the appropriate deductions for FICA taxes paid by the parties(see Family Ct Act § 413 [1] [b] [5] [vii] [H]), the combined parental income is$341,881. The next step requires the court to multiply the combined parental income, up to$80,000, by the relevant child support percentage—in this case 17%, for onechild—and then allocate that amount between the parties according to their pro rata sharesof the combined parental income (see Family Ct Act § 413 [1] [b] [3]; [c];Matter of Cassano v Cassano, 85 NY2d at 653). Taking that step would result in amonthly basic child support obligation of the father in the amount of $555.
However, where, as here, the combined parental income exceeds $80,000, the court musttake the third step of determining "the amount of child support for the amount of the combinedparental income in excess" of $80,000 "through consideration of the factors set forth in" FamilyCourt Act § 413 (1) (f) and/or the child support percentage (Family Ct Act § 413 [1][c] [3]). The relevant factors include the financial resources of the parents and of the child, thechild's health and any special needs, the standard of living the child would have had if themarriage had not ended (here, the parties never were married), tax consequences, nonmonetarycontributions of the parents toward the child, the educational needs of the parents, the disparity inthe parents' incomes, the needs of other nonparty children receiving support from one of theparents, extraordinary expenses incurred in exercising visitation and any other factors the courtdetermines are relevant (see Family Ct Act § 413 [1] [f]).
In this case, it is evident that the Support Magistrate applied the child support percentage tothe entire combined parental income in excess of $80,000. While it was a provident exercise ofdiscretion to apply the child support percentage to some of the combined parental income inexcess of $80,000, we [*3]conclude that under the circumstancespresented, which include, inter alia, the facts that the mother earns substantial income, the partiesnever were married, and the father has additional support obligations, including supportobligations for a daughter from a prior marriage, $145,000 represents a more appropriate totalcombined parental income upon which to apply the child support percentage (see Kaplan v Kaplan, 21 AD3d993, 994-995 [2005]; Jordan vJordan, 8 AD3d 444, 445-446 [2004]; Kosovsky v Zahl, 272 AD2d 59 [2000]).Using that total, the father's child support obligation is $1,006 per month, and we modify theorder entered September 10, 2007 to sustain the father's objections to that extent.
We further conclude that, under the circumstances, the father should pay the mother 49% ofthe expenses for child care, including but not limited to nursery school, day camp, and homechild care.
The father's remaining contentions are without merit. Rivera, J.P., Lifson, Santucci andMiller, JJ., concur.