| Matter of Marcklinger v Liebert |
| 2010 NY Slip Op 03510 [72 AD3d 1431] |
| April 29, 2010 |
| Appellate Division, Third Department |
| In the Matter of Paul Marcklinger, Appellant, v Joanne Liebert,Respondent. (And Another Related Proceeding.) |
—[*1] Joanne Liebert, Round Lake, respondent pro se.
Malone Jr., J. Appeal from that part of an order of the Family Court of Saratoga County(Abramson, J.), entered September 4, 2008, which, in two proceedings pursuant to Family Ct Actarticle 4, denied petitioner's objection to the calculation of his child support obligation.
Petitioner (hereinafter the father) and respondent (hereinafter the mother) were divorced in2005 and are the parents of two children (born in 1986 and 1990). The father commenced thefirst of these proceedings in October 2007, seeking to modify his child support obligation as setforth in the judgment of divorce due to, among other reasons, the parties' eldest child reachingthe age of emancipation. The mother then filed a petition, alleging, among other things, that thefather had not been paying his share of the children's medical expenses.
As is relevant here, following a combined fact-finding hearing on the petitions, the SupportMagistrate reduced the father's child support obligation for the remaining dependent child byapproximately $100 per week. The father filed objections to the order, disputing the SupportMagistrate's calculation of the mother's income and claiming that there was no evidence tosupport a calculation of the support obligation that included the combined parental income over$80,000. Finding that the Support Magistrate's order contained conflicting calculations [*2]regarding the parties' pro rata percentages—some reflectedthe mother's income inclusive of maintenance payments, while some did not—FamilyCourt remitted the matter to the Support Magistrate for correction and reconciliation on thatissue, but otherwise denied the objections. The father appeals from that part of the order whichdenied his objection to the calculation of his child support obligation.
Initially, we are not persuaded by the father's contention that the calculation of his childsupport obligation should be limited to his income up to $80,000. In calculating child supportobligations, a court is statutorily required to determine the total amount of the combined parentalincome (see Family Ct Act § 413 [1] [c] [1]) and then apply the statutory childsupport percentage to all of the income up to $80,000 (see Family Ct Act § 413 [1][c] [2]). For any combined parental income exceeding $80,000, "the court shall determine theamount of child support" for that amount based upon the statutory percentages, a considerationof the factors set forth in Family Ct Act § 413 (1) (f) or a combination of both (Family CtAct § 413 [1] [c] [3]; see Matter of Cassano v Cassano, 85 NY2d 649, 653-654[1995]). Thus, contrary to the father's claim, the Support Magistrate did not err by consideringthe parties' combined income in excess of $80,000 in its calculation of the child supportobligation.
However, although it was within the Support Magistrate's discretion to apply the statutorypercentage rather than the so-called paragraph (f) factors, to the parties' income in excess of$80,000, the Support Magistrate was nevertheless required to articulate a basis for such decision.Here, there is no rationale or discussion provided in the Support Magistrate's decision that"reflect[s] both that the court ha[d] carefully considered the parties' circumstances and that itha[d] found no reason . . . [for] a departure from the prescribed percentage"(Matter of Cassano v Cassano, 85 NY2d at 655). Absent such articulation, there can beno meaningful abuse of discretion review (see id.) and we are constrained to remit thematter to Family Court for further proceedings on this issue.
Finally, the father's remaining contention regarding the effective date of his child supportobligation is not preserved and, thus, not properly before this Court.
Cardona, P.J., Spain, McCarthy and Egan Jr., JJ., concur. Ordered that the order is modified,on the law, without costs, by reversing so much thereof as fixed petitioner's child supportobligation; matter remitted to the Family Court of Saratoga County for further proceedings notinconsistent with this Court's decision; and, as modified, affirmed.