| McCoy v McCoy |
| 2013 NY Slip Op 04581 [107 AD3d 857] |
| June 19, 2013 |
| Appellate Division, Second Department |
| Maureen McCoy, Appellant, v Brian JosephMcCoy, Respondent. |
—[*1] Carton & Rosoff P.C., White Plains, N.Y. (Robin D. Carton of counsel), forrespondent.
In an action for a divorce and ancillary relief, the plaintiff appeals, as limited by herbrief, from stated portions of a judgment of the Supreme Court, Putnam County (Nicolai,J.), dated May 4, 2011, which, inter alia, upon a decision of the same court dated March13, 2011, made after a nonjury trial, directed the defendant to pay child support in thesum of only $321.10 per week, failed to award her arrears for pendente lite child support,directed that the former marital residence be listed for immediate sale or that the plaintiffbe permitted to "buy out" the defendant's interest, directed that the plaintiff is solelyresponsible for that part of the balance of a home equity line of credit that exceeds$34,000, and directed the equitable distribution of the parties' retirement accounts.
Ordered that the matter is remitted to the Supreme Court, Putnam County, for theSupreme Court to set forth in a report the factors considered and the reasons for itsdetermination as to child support, and the appeal is held in abeyance in the interim. TheSupreme Court, Putnam County, is to file its report with all convenient speed.
The Child Support Standards Act (see Domestic Relations Law § 240[1-b]) sets forth a formula for calculating child support by applying a designatedstatutory percentage, based upon the number of children to be supported, to combinedparental income up to the statutory cap that is in effect at the time of the judgment (see Holterman v Holterman, 3NY3d 1, 11 [2004]; Matter of Cassano v Cassano, 85 NY2d 649, 653-654[1995]), here, $130,000 (see Social Services Law § 111-i [2] [b]). Withrespect to combined parental income exceeding that amount, the court has the discretionto apply the statutory child support percentage, or to apply the factors set forth inDomestic Relations Law § 240 (1-b) (f) (see Matter of Cassano v Cassano,85 NY2d at 654; Matter ofByrne v Byrne, 46 AD3d 812, 814 [2007]), or to utilize "some combination ofth[ose] two" methods (Poli v Poli, 286 AD2d 720, 723 [2001]; see Jordan v Jordan, 8 AD3d444, 445 [2004]). The hearing court must " 'articulate its reason or reasons for [thatdetermination], which should reflect a careful consideration of the stated basis for itsexercise of discretion, the parties' circumstances, and its reasoning why there [should or]should not be a departure from the prescribed percentage' " (Wagner v Dunetz,299 AD2d 347, 350-351 [2002], quoting Matter of Schmitt v Berwitz, 228 AD2d604, 605 [1996]; see Matter of Cassano v Cassano, 85 NY2d at 655; Matterof Wienands v Hedlund, 305 AD2d 692, 693 [2003]). Inasmuch as the record before[*2]us does not reveal the Supreme Court's reasons for itschoice not to include income above the statutory cap, it is appropriate to remit the matterto enable the Supreme Court to set forth the factors it considered and the reasons for itsdetermination (see Hohlweck v Hohlweck, 271 AD2d 571 [2000]; Zaremba vZaremba, 222 AD2d 500 [1995]; Jones v Reese, 217 AD2d 783 [1995]).
We reach no other issues at this juncture. Rivera, J.P., Balkin, Leventhal andHinds-Radix, JJ., concur.