| Matter of Miller v Miller |
| 2008 NY Slip Op 07299 [55 AD3d 1267] |
| October 3, 2008 |
| Appellate Division, Fourth Department |
| In the Matter of Brian Miller, Appellant, v Jennifer Miller, AlsoKnown as Jennifer Schlaffer, Respondent. |
—[*1] Trevett Cristo Salzer & Andolina P.C., Rochester (James A. Valenti of counsel), forrespondent-respondent.
Appeal from an order of the Family Court, Monroe County (John J. Rivoli, J.), enteredFebruary 16, 2007 in a proceeding pursuant to Family Court Act article 4. The order denied theobjections of the parties to the order of the Support Magistrate and confirmed that order.
It is hereby ordered that the order so appealed from is unanimously modified on the law bygranting petitioner's objections and as modified the order is affirmed without costs, and thematter is remitted to Family Court, Monroe County, for further proceedings in accordance withthe following memorandum: Petitioner father commenced this proceeding seeking, inter alia, tomodify his child support obligation on the ground that the parties' children were no longerresiding with respondent mother but instead were residing with him. He contends on appeal thatFamily Court erred in denying his objections to the order of the Support Magistrate and inconfirming that order. While we agree that modification was required because the children hadmoved from their mother's residence to that of their father, we are unable to determine thepropriety of the Support Magistrate's findings with respect to the parties' child supportobligations inasmuch as the Support Magistrate failed to set forth an adequate factual basis forthose findings that is supported by the record. In determining the parents' respective child supportobligations, the Support Magistrate was required to "determine the combined parental income"(Family Ct Act § 413 [1] [c] [1]) and, because the combined parental income exceeded$80,000, she also was required to "determine the amount of child support for the amount of thecombined parental income in excess of [$80,000] through consideration of the factors set forth inparagraph (f) of [section 413 (1)] and/or the child support percentage" (§ 413 [1][c] [3] [emphasis added]; see Matter of Cassano v Cassano, 85 NY2d 649, 654 [1995]).In view of the "and/or" language in the statute, the Support Magistrate was afforded thediscretion to apply the statutory factors, the child support percentage, or both, and "some recordarticulation of the reasons for the [Support Magistrate's] choice . . . [was] necessaryto facilitate . . . review" of that choice (Cassano, 85 NY2d at 655).
Here, the Support Magistrate opted not to apply the statutory percentage, and she thus wasrequired "to set forth in a written order[ ] the [statutory] factors [she] considered" in [*2]determining the amount of child support (Matter of NiagaraCounty Dept. of Social Servs. v C.B. [appeal No. 3], 234 AD2d 897, 899 [1996] [internalquotation marks omitted]), and to "relate that record articulation to the statutory factors. . . and [to] consider the needs of the child[ren] as a factor" (id. at 900). Weare unable to discern on the record before us the basis for the amount of child support orderedinasmuch as the Support Magistrate's reasoning in support of that amount was factually vague(see generally id. at 899-900).
The Support Magistrate also failed to set forth an adequate factual basis for her calculationsconcerning the contribution of the parties toward the medical and dental insurance costs of thechildren and the amount of child support for the "split custody" weeks. We therefore modify theorder accordingly, and we remit the matter to Family Court to determine the parties' child supportobligations and contribution toward the medical and dental insurance costs of the children incompliance with Family Court Act § 413. Present—Centra, J.P., Lunn, Fahey,Peradotto and Gorski, JJ.