| Matter of Smith v Evans |
| 2010 NY Slip Op 06171 [75 AD3d 603] |
| July 20, 2010 |
| Appellate Division, Second Department |
| In the Matter of Robin Smith, Respondent, v WilliamEvans, Appellant. |
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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, Queens County (O'Connor,J.), dated August 12, 2009, as granted his objection to that portion of an order of the same court(Blaustein, S.M.), dated June 5, 2009, as, after a hearing, directed him to pay child support in thesum of $340 per week commencing June 15, 2009, only to the extent of remitting the matter tothe Support Magistrate for "the required articulation in the findings of fact, if warranted."
Ordered that the order dated August 12, 2009, is modified, on the law, by deleting the words"if warranted" from the last sentence of the provision thereof entitled "CHILD SUPPORTSTANDARDS ACT PERCENTAGE OF 17% APPLIED TO COMBINED PARENTALINCOME OVER $80,000"; as so modified, the order is affirmed insofar as appealed from,without costs or disbursements, and the matter is remitted to the Family Court, Queens County,for the Support Magistrate to articulate the basis for the application of the statutory percentage toparental income over $80,000, and for a new determination of the father's objection thereafter.
A court's application of the Child Support Standards Act (Family Ct Act § 413)creates a rebuttable presumption that the guidelines contained therein will yield the correctamount of child support (see Matter of North Guilford County v Campbell, 305 AD2d686, 687 [2003]; Matter of Commissioner of Social Servs. v Brown, 229 AD2d 537, 538[1996]; Matter of Maddox v Doty, 186 AD2d 135 [1992]). Although the presumptionmay be rebutted by a showing that the amount yielded by the statutory formula is unjust (seeMatter of North Guilford County v Campbell, 305 AD2d at 687), the burden to rebut thepresumption lies with the party contesting application of the statutory percentage (see Matterof Tanya H. v Percy L., 228 AD2d 439 [1996]). Here, the father failed to present to theSupport Magistrate any evidence that his income from rental property should have beendiscounted or disregarded in light of the expenses he incurred in connection with thoseproperties. Accordingly, the Family Court properly denied the father's objection to the SupportMagistrate's inclusion of his rental income in determining the parents' combined income, hisshare thereof, and his support obligation (id.).
We note that while the Family Court properly granted the father's objection to that portion ofthe Support Magistrate's order which directed him to pay child support in the sum of $340 perweek commencing June 15, 2009, to the extent of remitting the matter to the Support Magistrate[*2]because it failed to sufficiently articulate the reasons forapplying the statutory percentage to combined parental income in excess of $80,000 annually(see Matter of Cassano v Cassano, 85 NY2d 649, 655 [1995]; Matter of Miller v Miller, 55 AD3d1267, 1268-1269 [2008]; Matter ofByrne v Byrne, 46 AD3d 812, 814 [2007]; Matter of Wienands v Hedlund, 305AD2d 692, 693 [2003]; Matter of Gluckman v Qua, 253 AD2d 267, 270-271 [1999]), theFamily Court incorrectly directed the Support Magistrate to make additional findings only "ifwarranted." Accordingly, the order must be modified to clarify the Support Magistrate's duty toarticulate the basis for the application of the statutory percentage to parental income over$80,000 (see Matter of Cassano v Cassano, 85 NY2d at 655; Matter of Wienands vHedlund, 305 AD2d at 693), and the matter must be remitted to the Family Court, QueensCounty, for a new determination of the father's objection thereafter. Skelos, J.P., Santucci,Leventhal and Hall, JJ., concur.