| Mejia v Mejia |
| 2013 NY Slip Op 03305 [106 AD3d 786] |
| May 8, 2013 |
| Appellate Division, Second Department |
| Wascar Mejia, Respondent, v Yvette Mejia,Appellant. |
—[*1] Bilotta and Metz, P.C., New City, N.Y. (Cassandra Bilotta of counsel), forrespondent.
In an action for a divorce and ancillary relief, the defendant appeals, as limited by hernotice of appeal and brief, from so much of a judgment of the Supreme Court, RocklandCounty (Walsh II, J.), dated April 23, 2012, as, upon an amended decision of the samecourt dated December 15, 2011, made after a nonjury trial, (1) awarded the plaintiff childsupport in the sum of $1,789 per month, (2) awarded title to the marital residence to theplaintiff and the three children of the marriage, (3) failed to award her a portion of acertain savings account maintained in the plaintiff's name, (4) directed her to pay 37% ofthe college expenses of the parties' children, (5) failed to direct the plaintiff to maintainmedical, dental, prescription, and optical insurance for the benefit of the unemancipatedchildren of the marriage, and (6) failed to include the notice required by DomesticRelations Law § 236 (B) (7) (d).
Ordered that the judgment is modified, on the law and in the exercise of discretion,(1) by deleting the provision thereof awarding the plaintiff child support in the sum of$1,789 per month, and substituting therefor a provision awarding the plaintiff childsupport in the sum of $1,341 per month, subject to reduction as each of the parties'children reaches the age of 21 or is otherwise emancipated, (2) by deleting the provisionthereof directing the defendant to pay 37% of the college expenses of the parties'children, (3) by deleting the provision thereof awarding title to the marital residence tothe plaintiff and the parties' children, and substituting therefor a provision awarding theplaintiff exclusive possession of the marital residence until the parties' youngest childreaches the age of 18 or graduates from high school, whichever occurs first, whereuponthe marital residence shall be sold and any proceeds, after application of any appropriatecredits, shall be divided equally between the parties, (4) by adding thereto a provisiondirecting the plaintiff to maintain medical, dental, prescription, and optical insurance forthe benefit of the unemancipated children of the marriage, and (5) by adding thereto aprovision pursuant to Domestic Relations Law § 236 (B) (7) (d) notifying theparties of their right to seek a modification of the child support; as so modified, thejudgment is affirmed insofar as appealed from, with costs to the defendant.
The plaintiff and the defendant were married in 1998, and have three children, nowages 14, 10, and 6. Upon the parties' separation, they each petitioned for custody of thechildren. By order of the Family Court, Rockland County, dated January 6, 2011, enteredupon the parties' [*2]consent, they were awarded jointlegal custody, and the plaintiff was awarded primary physical custody.
After a nonjury trial on certain financial issues, the Family Court considered the first$200,000 of combined parental income in determining child support, based upon, interalia, "the economic reality of life in Rockland County, the financial resources of thecustodial and noncustodial parent, and those of the children, [and] a determination thatthe gross income of one parent is substantially less than the other parents's grossincome," and set the defendant's child support obligation at $1,789 per month. Themarital residence, titled in the parties' joint names, was awarded to the plaintiff and thechildren, based upon the plaintiff's claim that there was no equity in the house. The courtfurther concluded in its decision that the plaintiff should maintain health insurance forthe children, and the defendant should pay 37% of the college expenses of the children.
A modification of the child support award is warranted considering the substantialdifference between the parties' income, the fact that the defendant has less income thanthe plaintiff, and the amount of parenting time awarded to the defendant. Under all of thecircumstances, it is just and appropriate to apply the statutory percentage of 29% for thethree minor children to the first $150,000 of combined parental income (seeDomestic Relations Law § 240 [1-b] [f]). Calculated on that basis, the defendant'spro rata share of the child support obligation is $1,341 per month, subject to reduction aseach child reaches the age of 21 years or is otherwise emancipated.
The parties both acknowledge that the Family Court had no authority to direct theconveyance of the defendant's interest in the marital residence to the children. However,the plaintiff, who was seeking the defendant's interest in that property, had the burden ofestablishing its value, which he failed to do (see Alper v Alper, 77 AD3d 694 [2010]). Under thesecircumstances, the plaintiff is not entitled to an award of the defendant's interest in themarital residence. Since the plaintiff has physical custody of the children, he should beawarded exclusive possession of the marital residence until the youngest child reachesthe age of 18 or graduates from high school, whichever occurs first (see Mosso v Mosso, 84 AD3d757 [2011]; Cabeche vCabeche, 10 AD3d 441 [2004]), whereupon the marital residence should be soldand any proceeds, after application of any appropriate credits, should be divided equallybetween the parties.
Considering the ages of the children, it was premature for the Supreme Court todirect the defendant to contribute toward the college expenses of the children (see Felix v Felix, 87 AD3d1106, 1108 [2011]; Bogannam v Bogannam, 60 AD3d 985, 986 [2009]; Bibas v Bibas, 58 AD3d586, 588 [2009]).
When there is an inconsistency between a judgment and the decision or order uponwhich it is based, the decision or order controls (see McLoughlin v McLoughlin, 63 AD3d 1017, 1020[2009]; Curry v Curry, 14AD3d 646, 647 [2005]; Pauk v Pauk, 232 AD2d 386, 390 [1996]). In itsdecision, the Supreme Court ruled that the plaintiff shall maintain medical, dental,prescription, and optical insurance for the benefit of the parties' unemancipated children.However, the judgment failed to include a provision effectuating that determination.Accordingly, the judgment must be modified to include such a provision.
Similarly, Domestic Relations Law § 236 (B) (7) (d) requires that any order ofsupport include a notice informing the parties of their right to seek a modification of thechild support order upon a showing of "(i) a substantial change in circumstances; or (ii)that three years have passed since the order was entered, last modified or adjusted; or (iii)there has been a change in either party's gross income by fifteen percent or more since theorder was entered, last modified, or adjusted." Because the judgment failed to includesuch a notice, we modify the judgment to include that notice.
The defendant's remaining contentions are without merit. Dillon, J.P., Chambers,Hall and Hinds-Radix, JJ., concur.