| Matter of Moore v Abban |
| 2010 NY Slip Op 03335 [72 AD3d 970] |
| April 20, 2010 |
| Appellate Division, Second Department |
| In the Matter of Delmar Moore, Appellant, v CharityAbban, Respondent. |
—[*1] Sergio Villaverde, PLLC, New York, 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, Westchester County (Duffy,J.), entered October 31, 2008, as denied his objections to an order of the same court (Hochberg,S.M.), dated February 13, 2008, which, after a hearing, inter alia, granted the mother's petitionfor a modification of her child support obligation, vacated a prior order of child support nunc protunc to September 9, 2005, vacated the mother's child support arrears, and directed the SupportCollection Unit to stop charging or collecting child support against the mother.
Ordered that the order dated October 31, 2008, is reversed insofar as appealed from, on thelaw, without costs or disbursements, the father's objections to the order dated February 13, 2008,are granted, the order dated February 13, 2008, is vacated, and the matter is remitted to theFamily Court, Westchester County, for a new determination on the mother's petition inaccordance herewith.
The Child Support Standards Act (hereinafter CSSA) (Family Ct Act § 413; DomesticRelations Law § 240) imposes a "basic child support obligation" upon a parent based uponnumerical guidelines (see Family Ct Act § 413 [1] [c]; Matter of Lanzi vLanzi, 298 AD2d 53, 56 [2002]), and a rebuttable presumption exists that the amount ofchild support calculated under the statutory guidelines is correct (see Matter of Simmons vWilliams, 255 AD2d 446 [1998]; Matter of Sullivan v Frank, 239 AD2d 591[1997]). However, this presumption may be rebutted, and the support obligation adjusted, if thecourt finds that the noncustodial parent's support obligation is "unjust or inappropriate" basedupon its consideration of statutory factors set forth in Family Court Act § 413 (1) (f)(see Matter of Simmons v Williams, 255 AD2d at 446; Matter of Sullivan vFrank, 239 AD2d at 591). Such factors include, inter alia, the financial resources of eachparent (Family Ct Act § 413 [1] [f] [1]), the relative gross income of each parent (FamilyCt Act § 413 [1] [f] [7]), and "[a]ny other factors the court determines are relevant in eachcase" (Family Ct Act § 413 [1] [f] [10]; see Domestic Relations Law § 240[1-b] [f] [1], [7], [10] [setting forth the same factors]). Where, after considering the statutoryfactors, "the court finds that the non-custodial parent's pro rata share of the basic child supportobligation is unjust or inappropriate, the court shall order the non-custodial parent to pay suchamount of child support as the court finds just [*2]andappropriate" and shall set forth its reasons therefor in a written order (Family Ct Act § 413[1] [g]; see Domestic Relations Law § 240 [1-b] [g]; Matter of Dora T.J. vJean-Paul A.S., 224 AD2d 420, 421 [1996]).
Although such an order may reduce a party's child support obligation from that calculated byapplication of the CSSA statutory guidelines, "[i]n no instance shall the court order child supportbelow twenty-five dollars per month" (Family Ct Act § 413 [1] [g]; see DomesticRelations Law § 240 [1-b] [g]). In addition, a noncustodial parent's child supportobligation resulting from the application of the statutory guidelines may be reduced where thatobligation would place that parent below the self-support reserve level (see Family CtAct § 413 [1] [b] [6]; Domestic Relations Law § 240 [1-b] [b] [6]; Harrison vHarrison, 255 AD2d 490, 491 [1998]; Matter of Keay v Menda, 210 AD2d 483,483-484 [1994]). Under such circumstances, the support obligation to be imposed is the greaterof $25 per month or the difference between the noncustodial parent's income and the self-supportreserve (see Family Ct Act § 413 [1] [d]; Domestic Relations Law § 240[1-b] [d]).
Here, in vacating the prior support order, thereby relieving the mother of any obligation topay child support, the Support Magistrate violated the CSSA's requirement that she be requiredto pay child support of at least $25 per month (see Family Ct Act § 413 [1] [d],[g]). Accordingly, the matter must be remitted to the Family Court, Westchester County, for a denovo determination of the mother's child support obligation in accordance with the CSSA. Uponremittal, the mother's contentions concerning her inability to work, the father's dissipation ofmarital assets, and the cost of counseling incurred by the mother as a result of the father'sphysical and emotional abuse should be considered by the Family Court in making thisdetermination (see Family Ct Act § 413 [1] [f]).
In addition, the Support Magistrate improperly vacated the mother's child support arrears.The Support Magistrate concluded, in essence, that because it was unjust and inappropriate toimpose any child support obligation upon the mother (see Family Ct Act § 413 [1][g]), she was entitled to have her support obligation terminated nunc pro tunc to the date of theoriginal support order and to have her arrears vacated accordingly. However, the Family Courtcould not reduce or vacate the arrears which accrued prior to the date of the mother's petition,regardless of whether the mother had good cause for having failed to seek modification of thechild support order prior to their accumulation (see Family Ct Act § 451;Matter of Dox v Tynon, 90 NY2d 166, 173-174 [1997]; Matter of Wrighton v Wrighton, 23AD3d 669, 670 [2005]; Matter ofJenkins v McKinney, 21 AD3d 558 [2005]; Matter of Barrow v Kirksey, 15 AD3d 801 [2005]). Since themother failed to petition for a modification of support before arrears began to accrue, she isobligated to pay arrears until the date of her petition (see Matter of Macauley v Duffy,297 AD2d 680, 681 [2002]). With regard to the child support arrears which accrued after thedate of the mother's petition, upon remittal, the Family Court must recalculate those arrears inlight of its de novo determination as to the mother's child support obligation under the CSSA(see Matter of Kramer v Kramer, 57 AD2d 568, 568-569 [1977]). Fisher, J.P., Florio,Belen and Austin, JJ., concur.