| Matter of Gardner v Maddine |
| 2013 NY Slip Op 08627 [112 AD3d 926] |
| December 26, 2013 |
| Appellate Division, Second Department |
| In the Matter of Mona Lisa Gardner,Respondent, v Gary Maddine, Appellant. |
—[*1] Orrick, Herrington & Sutcliffe LLP, New York, N.Y. (Rene Kathawala of counsel),for respondent.
In a child support proceeding pursuant to Family Court Act article 4, the fatherappeals from an order of the Family Court, Kings County (Danoff, J.), dated March 30,2012, which denied his objections to so much of an order of the same court (Fasone,S.M.) dated January 10, 2012, as, after a hearing, granted his petition for downwardmodification of his child support obligation only to the extent of reducing his obligationto the sum of $1,074 per month, and failed to make a corresponding reduction in theamount of his child support arrears which accrued before he filed his petition.
Ordered that the order dated March 30, 2012, is modified, on the facts and in theexercise of discretion, by deleting the provision thereof denying the father's objection toso much of the order dated January 10, 2012, as granted his petition for downwardmodification of his child support obligation to the extent of reducing his obligation to thesum of $1,074 per month, and substituting therefor a provision granting that objection inits entirety and vacating that portion of the order dated January 10, 2012; as so modified,the order dated March 30, 2012, is affirmed, without costs or disbursements, and thematter is remitted to the Family Court, Kings County, for a new hearing on the father'spetition, and for a new determination of the petition thereafter; and it is further,
Ordered that pending a new determination as to the father's child support obligation,the father shall continue to pay the sum of $1,074 monthly (consisting of $936 in basicchild support and $138 for child care expenses) for the subject child, in accordance withthe order dated January 10, 2012.
At issue on this appeal is the father's obligation to support his child (hereinafter thesubject child), who was born in 1998. The father and the child's mother never married. In2010 the mother petitioned for child support, and the Family Court issued a support orderupon the father's default in opposing the petition. Very shortly thereafter, the fatherpetitioned, inter alia, for a downward modification, arguing that his income was lowerthan the court had accounted for in the order entered on default, and noting that he hadmarried another woman and had four other children, one of whom was less than one yearold when he filed his petition for modification. Although the [*2]Support Magistrate granted a downward modification, nuncpro tunc to the date of the petition for modification, the Support Magistrate neverthelessordered child support in accordance with the Child Support Standards Act (Family CtAct § 413), and did not make a corresponding reduction in the amount of arrearswhich accrued before the father filed his petition. The father filed objections to the order,the Family Court denied the objections, and the father appeals.
The father contends that when the Support Magistrate reduced his child supportobligation, he should have made a corresponding reduction in the amount of the father'schild support arrears which accrued before he filed his petition. This contention iswithout merit. A court "ha[s] no discretion to reduce or cancel arrears of child supportwhich accrue before an application for downward modification of the child supportobligation" (Grossman vComposto-Longhi, 96 AD3d 1000, 1002 [2012] [internal quotation marksomitted]; see Hasegawa v Hasegawa, 290 AD2d 488 [2002]). A downwardmodification can only apply prospectively (see Fruchter v Fruchter, 29 AD3d 942 [2006]).
However, the Support Magistrate improvidently exercised his discretion in grantingthe father's petition only to the extent of reducing his obligation to the sum of $1,074 permonth. If the basic child support amount computed pursuant to Family Court Act §413 (1) (c) is unjust and inappropriate, child support is to be determined pursuant toFamily Court Act § 413 (1) (g), based upon "such amount of child support as thecourt finds just and appropriate." Furthermore, additional expenses for child care, whichmust be awarded when child support is determined pursuant to Family Court Act §413 (1) (c), need not be awarded if child support is determined pursuant to Family CourtAct § 413 (1) (g) (seeMatter of Hudgins v Blair, 74 AD3d 1199, 1200 [2010]; Callen vCallen, 287 AD2d 818, 820 [2001]).
Here, the father demonstrated that his wife's income is lower than the mother'sincome, so there are fewer resources available to support the children of his marriagethan there are to support the subject child (see Family Ct Act § 413 [1] [f][8]; Matter of Hudgins v Blair, 74 AD3d at 1200; Matter of Santiago v Roman, 5AD3d 689 [2004]). Moreover, given the level of education completed by the father'swife, and the fact that she is the caretaker of four children, including a baby, her ability tocontribute to her family's earnings is severely circumscribed. Under these circumstances,it was unjust and inappropriate for the child support award to be calculated pursuant toFamily Court Act § 413 (1) (c).
Accordingly, we remit the matter to the Family Court, Kings County, for a newdetermination of child support pursuant to Family Court Act § 413 (1) (g). Eng,P.J., Skelos, Dillon and Sgroi, JJ., concur.