| Matter of Parsick v Rubio |
| 2013 NY Slip Op 01274 [103 AD3d 898] |
| February 27, 2013 |
| Appellate Division, Second Department |
| In the Matter of David C. Parsick,Appellant, v Thomas P. Rubio, Respondent. |
—[*1] Dikman & Dikman, Lake Success, N.Y. (David S. Dikman of counsel), forrespondent.
In a child support proceeding pursuant to Family Court Act article 4, the petitionerappeals, as limited by his brief, from so much of an order of the Family Court, SuffolkCounty (Hoffmann, J.), dated March 18, 2012, as denied his objections to so much of anorder of the same court (Parisi, S.M.), dated December 23, 2011, as, after a hearing,granted his petition to the extent of directing the respondent to pay basic child supportfor the parties' two children in the sum of only $512.50 per week and directed that therespondent be credited for overpayments made pursuant to a temporary support orderdated November 11, 2010.
Ordered that the order dated March 18, 2012, is reversed insofar as appealed from,on the law and the facts, without costs or disbursements, the objections to so much of theorder dated December 23, 2011, as granted the petition to the extent of directing therespondent to pay child support for the parties' two children in the sum of only $512.50per week and directed that the respondent be credited for overpayments made pursuant tothe November 11, 2010, temporary support order are granted, those portions of the orderdated December 23, 2011, are vacated, the petition is granted to the extent that therespondent is directed to pay basic child support in the sum of $1,025 per week, and thematter is remitted to the Family Court, Suffolk County, for a determination of anyarrears.
The petitioner, David S. Parsick, and the respondent, Thomas P. Rubio, are theparents of two children. Parsick has sole custody of the children pursuant to anagreement between the parties.
In 2006, Parsick resumed his work as a public school teacher, and Rubio voluntarilymade support payments, most recently in the sum of $1,234 per week. In May 2008,Rubio stopped making voluntary support payments. Parsick petitioned for child supportin 2010. A pendente lite order dated November 1, 2010, awarded Parsick temporary childsupport in the sum of $1,000 per week.
At a subsequent hearing on child support, Parsick testified that in 2010, his salary asa public school teacher was $91,396 per year, representing a substantial raise from hisincome in [*2]2008 of $82,274. He and the childrenoccupied a house given to him by Rubio. The children took music lessons and went tosummer camp. The parties' son, who has special needs, received occupational therapycovered by Parsick's health insurance. Rubio owned 24.5% of a family business, andearned a weekly gross salary from the family business of $6,500.
The Support Magistrate found that combined parental income was $468,259.36, 82%of which was attributable to Rubio. The Support Magistrate declined to award any childsupport above a combined parental income of $130,000, determining that, uponconsideration of the factors specified in Family Court Act § 413 (1) (f), Rubio'spro rata share of the basic child support obligation above that amount would be "unjustand/or inappropriate," inter alia, because Parsick failed to submit evidence of thechildren's standard of living prior to the parties' separation, and Parsick had beensupporting the children for two years without help. In an order dated December 23, 2011,the Support Magistrate, inter alia, granted Parsick's petition to the extent of directingRubio to pay child support in the sum of $512.50 per week and directed that Rubio becredited for overpayments made pursuant to the November 1, 2010, temporary supportorder.
Parsick filed objections to the support order, arguing, among other things, that theSupport Magistrate erred in capping the parties' income at $130,000, failing to awardadditional support, and directing that Rubio be credited for overpayments. In the orderappealed from, the Family Court, inter alia, denied those objections on the ground thatthe facts cited supported the determination that the needs of the children were being met.
When the combined parental income exceeds $130,000, the "statutory cap" (Iarocci v Iarocci, 98 AD3d999, 1001 [2012]) that was in effect when the order appealed from was entered, "thecourt shall determine the amount of child support for the amount of the combinedparental income in excess of [$130,000] through consideration of the factors set forth inparagraph (f) of this subdivision and/or the child support percentage" (Family Ct Act§ 413 [1] [c] [3]). The Family Court must articulate an explanation of the basis forits calculation of child support based on parental income above $130,000 (see Matterof Cassano v Cassano, 85 NY2d 649, 654-655 [1995]; Matter of Bonsignore vFlanagan, 93 AD3d 841, 842 [2012]). The reasons do not have to be based uponthe needs of the child (see Matter of Cassano v Cassano, 85 NY2d at 655). Thetest generally applied is whether the child is receiving enough to meet his or her "actualneeds and the amount required . . . to live an appropriate lifestyle" (Levesque v Levesque, 73AD3d 990, 990 [2010]; seeMatter of Brim v Combs, 25 AD3d 691, 693 [2006]).
The record reveals that the children enjoyed a comfortable lifestyle, participating inmusic lessons and attending summer camp. On the question of the amount of supportnecessary to maintain that lifestyle, Rubio's most recent voluntarypayments—made in 2008—were over $1,200 per week, and while sincethen, Parsick received a substantial raise in salary, that raise did not compensate forRubio's termination of support payments. Although Parsick was able to maintain thechildren's lifestyle for two years without any financial contributions from Rubio, heshould not be expected to do so indefinitely, without Rubio contributing his equitableshare.
If a child's lifestyle may be maintained by the support provided pendente lite, asimilar award may be made, and the "cap" adjusted to meet that level of support (see Lago v Adrion, 93 AD3d697, 699 [2012]). Here, we find that the children's needs will be met, and theirlifestyle maintained, with an award based upon applying the child support percentage tothe first $260,000 of combined parental income, which yields an award of $1,025 perweek.
Accordingly, the subject objections are granted, the petition is granted to the extentof directing Rubio to pay basic child support in the sum of $1,025 per week, and thematter is remitted to the Family Court, Suffolk County, for a determination of anyarrears. Dillon, J.P., Dickerson, Leventhal and Hinds-Radix, JJ., concur.