| Matter of Ryan v Ryan |
| 2011 NY Slip Op 03927 [84 AD3d 1515] |
| May 12, 2011 |
| Appellate Division, Third Department |
| In the Matter of Francis J. Ryan, Respondent, v Tinalynn K. Ryan,Appellant. |
—[*1] Richard J. Grace, Binghamton, for respondent.
Malone Jr., J. Appeal from an order of the Family Court of Broome County (Pines, J.),entered September 22, 2009, which granted petitioner's application, in a proceeding pursuant toFamily Ct Act article 4, to modify a prior order of child support.
Petitioner (hereinafter the father) and respondent (hereinafter the mother) are the divorcedparents of two children, Francis (born in 1996) and Richard (born in 1999). Pursuant to aseparation agreement which was incorporated, but not merged, into their judgment of divorce,the parties agreed to equally share legal and physical custody of the children. The agreement alsoset forth the method for calculating the father's child support obligation, which deviated from theChild Support Standards Act (see Domestic Relations Law § 240 [1-b]; Family CtAct § 413 [hereinafter CSSA]), and included a provision mandating that "[c]hild supportpayments shall be adjusted accordingly if joint custody and/or shared residence is not maintainedfor either or both children." The agreement further mandated the father to maintain healthinsurance coverage for the children and allocated two thirds of their unreimbursed medicalexpenses to him, also a deviation from the CSSA.
In 2009, sole physical custody of Francis was granted to the father on the parties' consentand, based on this change in circumstances, the father sought a modification of his child [*2]support obligation, which he had been paying to the mother in theamount of $935 per month. A Support Magistrate agreed that the change in custody constituted achange in circumstances, but determined that the parties' separation agreement was "unclear as tohow support should be adjusted" and, as a result, recalculated the father's support obligationpursuant to the CSSA. Ultimately, the Support Magistrate reduced the father's obligation to $109per month, and directed that the parties share the cost of both health insurance coverage andunreimbursed medical expenses on a pro rata basis. Both parties submitted written objections tothe Support Magistrate's order, which were denied by Family Court. The mother appeals.
Initially, the change in custody of Francis constituted a sufficient change in circumstanceswarranting a modification of the father's support obligation (see Matter of Sidoti v Sidoti, 41 AD3d 944, 944-945 [2007]).Although the mother does not dispute this point, nor does she challenge the Support Magistrate'suse of the CSSA rather than the method set forth in the parties' separation agreement inperforming a recalculation, she nevertheless contends that the Support Magistrate incorrectlycalculated the father's support obligation. We agree.
First, the Support Magistrate erroneously multiplied the total combined parental income by25%, as though both children resided in the same household (see Family Ct Act §413 [1] [b] [3]; McMillen v Miller,15 AD3d 814, 816 [2005]; Buck v Buck, 195 AD2d 818, 818 [1993]). Instead, theSupport Magistrate should have calculated 17% of the combined parental income up to thestatutory cap and then determined the father's proportionate share for Richard, the child of whomthe parties share custody.[FN1]The same base amount should have been multiplied by 17% to then determine the mother'sproportionate share of the basic child support obligation for Francis, of whom the mother is nowthe noncustodial parent (see McMillen v Miller, 15 AD3d at 816-817). The net supportobligation owed by the father should then be calculated (see Riseley v Riseley, 208 AD2d132, 135-136 [1995]). In the event that the court determines the net amount to be inappropriate orunjust for either household, it may fix a more appropriate award after considering the statutoryfactors in Family Ct Act § 413 (1) (f).
The Support Magistrate further erred by multiplying the total combined parental income,including income exceeding the statutory cap, by 25% (see Family Ct Act § 413[1] [c] [2]; Social Services Law § 111-i [2] [former (b)]), again as if both children residedin the same household. However, he then increased that amount by another 25%, therebydeviating from the statutory percentage formula. While it was within the Support Magistrate'sdiscretion to apply the statutory percentage, the factors set forth in Family Ct Act § 413 (1)(f), or a combination of both, some articulation of the reasons for the choice must be made. If thecourt decides to deviate from the statutory percentage, it must set forth in a written decision whatthe presumptive amount would be and provide a basis for its decision that "reflect[s] a carefulconsideration of the parties' circumstances . . . with an articulation of the factors itdeems relevant" (McMillen v Miller, 15 AD3d at 817 [internal quotation marks andcitation omitted]; see Matter of Cassano v Cassano, 85 NY2d 649, 655 [1995]; Matterof Gianniny v Gianniny, 256 AD2d 1079, 1080 [1998]). Here, in deviating from the statutory25%, which was an improper figure in the first place, the Support Magistrate simply stated that ithad considered the relevant factors and [*3]determined that "caselaw suggest [sic] that it is in fact more expensive to raise children in a shared and splitcustody situation."
Then, after determining that "[e]ach child would need $300 per week," with the fatherresponsible for $240 and the mother responsible for $60, the Support Magistrate "allocate[d][the] burden between the two homes" by directing that the mother owed $60 every week for thesupport of Francis, because she does not have physical custody of him, and $60 every other weekfor the support of Richard. He directed that the father owed $240 every other week for thesupport of Richard, but found that he had no obligation with respect to Francis. However, thistype of offset method of calculation is not typically favored (see e.g. Bast v Rossoff, 91NY2d 723, 731-732 [1998]).[FN2]Rather, each parent is responsible for his or her pro rata share of the child support obligation forthe child for whom he or she is the noncustodial parent, regardless of the amount of time thatchild spends in each respective household.
In light of the foregoing errors, this matter must be remitted for a redetermination of theparties' respective child support obligations. Notably, without an adequate articulation of thereasons for Family Court's treatment of the combined parental income over the statutory cap,there can be no meaningful abuse of discretion review (see Matter of Marcklinger v Liebert, 72 AD3d 1431, 1432 [2010]).
Finally, we disagree with the father's contention that Family Court erred by prorating theparties' respective shares of both the cost of health insurance for the children as well asreasonable unreimbursed health care expenses (see Family Ct Act § 413 [1] [c][5]).
Mercure, J.P., Lahtinen, Kavanagh and Garry, JJ., concur. Ordered that the order is reversed,on the law, without costs, and matter remitted to the Family Court of Broome County for furtherproceedings not inconsistent with this Court's decision.
Footnote 1: Because the father has thehigher income, he will be deemed the noncustodial parent for the child of whom the partiesequally share physical custody (see Baraby v Baraby, 250 AD2d 201, 204 [1998]).
Footnote 2: In its decision, the SupportMagistrate explicitly acknowledged that the Court of Appeals has rejected the proportional offsetmethod, but nevertheless proceeded to apply a similar method of calculation.