| Matter of Freeman v Freeman |
| 2010 NY Slip Op 02789 [71 AD3d 1143] |
| March 30, 2010 |
| Appellate Division, Second Department |
| In the Matter of Allana Freeman, Respondent, v DeanFreeman, Appellant. |
—[*1] Glenn J. Ingoglia, Island Park, N.Y., for respondent.
In a child support proceeding pursuant to Family Court Act article 4, the father appeals, aslimited by his brief, from so much of an order of the Family Court, Suffolk County (Hoffmann,J.), dated May 13, 2009, as granted his objection to so much of an order of the same court(Rodriguez, S.M.) dated February 26, 2009, as, after a hearing, and upon, in effect, vacating anadjusted order of support dated August 16, 2008, issued by the Suffolk County Child SupportCollection Unit, directed him to pay child support in the bi-weekly sum of $1,656, only to theextent of reducing his child support obligation to the biweekly sum of $1,165.
Ordered that the order is affirmed insofar as appealed from, with costs.
In a judgment of divorce dated July 29, 2003, the marriage of the parties, who had twochildren, was dissolved. Pursuant to the judgment of divorce, the father was required to pay themother, who had custody of the children, child support in the biweekly sum of $636.Subsequently, in an order of the Family Court, Suffolk County, dated July 28, 2004, the fatherwas required to make his child support payments through the Suffolk County Support CollectionUnit (hereinafter the SCU).
In a cost-of-living adjustment order (hereinafter the COLA order) dated August 18, 2008, theSCU increased the father's child support obligation to the biweekly sum of $713. Even thoughthe father's child support obligation was increased, the mother, who sought to have thatobligation increased even further, submitted a written objection to the COLA order in the FamilyCourt, as she was entitled to do (see Family Ct Act § 413-a [3] [a]; seegenerally Matter of Tompkins County Support Collection Unit v Chamberlin, 99 NY2d 328,335 [2003]).
In an order dated February 26, 2009 (hereinafter the Support Magistrate's order), a SupportMagistrate, after conducting a hearing, in effect, vacated the COLA order, and calculated thefather's child support obligation pursuant to the Child Support Standards Act (hereinafter theCSSA) (see Family Ct Act § 413-a [3] [b] [1]). In calculating the father's childsupport obligation pursuant to the CSSA, the Support Magistrate, inter alia, applied the statutorychild support percentage of 25% (see Family Ct Act § 413 [1] [b] [3] [ii]) to theamount of combined parental income exceeding $80,000. Consequently, the Support Magistratedirected the father to pay child support in the biweekly sum of $1,656. The father filed certainobjections to the Support Magistrate's order (see Family Ct Act § 439 [e]).[*2]
In the order appealed from dated May 13, 2009, theFamily Court found, inter alia, that the Support Magistrate improperly applied the statutory childsupport percentage to the amount of combined parental income exceeding $80,000, as doing sowas "unjust and inappropriate." Then, the Family Court, upon considering certain circumstancesof the parties and their children, determined the amount of child support for the amount ofcombined parental income exceeding $80,000 in a particular manner resulting in the fatherhaving a significantly reduced child support obligation, to wit, one in the biweekly sum of$1,165.
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 particular ceiling (see Holterman v Holterman, 3 NY3d 1, 11 [2004];Matter of Cassano v Cassano, 85 NY2d 649, 653 [1995]), here, $80,000 (seeFamily Ct Act former § 413 [1] [c] [2]). Where, as here, combined parental incomeexceeds that ceiling, the court, in fixing the basic child support obligation on income over theceiling, has the discretion to apply the factors set forth in Family Court Act § 413 (f), or toapply the statutory percentages, or to apply both (see Matter of Cassano v Cassano, 85NY2d at 655; Matter of Byrne v Byrne, 46 AD3d 812, 814 [2007]). Contrary to thefather's contention, under the circumstances, the Family Court providently exercised itsdiscretion in determining the amount of child support for the amount of combined parentalincome exceeding $80,000.
The father's remaining contentions are without merit. Fisher, J.P., Covello, Lott and Sgroi,JJ., concur.