Considering the add-ons for private school, health care, child care, and extra-curricular activities, imposing a base child support obligation upon a father (the less-moneyed spouse) in excess of his pro rata share of the first $136,000 of combined parental income would be unjust and inappropriate. Such was the holding of Acting Supreme Court Kings County Justice Debra Silber in her August 12, 2013 decision in A.C. v. J.O.
That ruling, at first blush, would appear to be at odds with the Second Department’s August 14, 2013 decision in Beroza v. Hendler, the subject of Monday’s blog post. There, the appellate court held it was improper for the trial court to have limited the base child support obligation of the father (the less moneyed spouse) to less than his pro rata share of the first $400,000 in combined parental income.
Any comparison, however, must be clouded by the vast number of factors that Justice Silber considered when deciding all of the issues incident to the parties’ divorce.
In A.C. v. J.O., at the time of the commencement of the divorce action in May, 2011, the parties had been married for almost 13 years. They had two children, a daughter now 12 and a son now 10. The parties were still living together. The wife, 52 years old, had her own dental practice, with income stipulated to be $251, 395. The husband, 47, worked as a first assistant director, primarily for television. He also wrote screenplays and recently made a full length film, which he both wrote and directed. The husband’s income was stipulated to be $171,706.
In a lengthy opinion, Justice Silber awarded the mother both physical and legal (decision-making) custody of the two children. Although both parents could handle parenting responsibilities alone, joint custody was not appropriate as the parents’ “cannot easily agree upon anything.” Justice Silber provided a detailed plan for the father’s “parental access” and consultation on major decisions.
Both parties waived maintenance. The Court ruled upon issues of separate and marital property and equitable distribution. The mother was awarded exclusive occupancy of the marital residence until the 10-year-old son turned 18. Again, great detail of the Court’s analysis is provided in the decision.
On the issue of child support, the mother’s divorce complaint served at the time of the commencement of the action did include a demand for child support. However, Justice Silber denied retroactivity to her child support award. The father had lived in the marital residence during the entire pendency of the action, paying the mortgage and other household expenses. The mother paid for other family expenses. The Court determined that the father had paid his fair share, or more, for support of the children while the action was pending.
Justice Silber then addressed the calculations required under the Child Support Standards Act. Applying the statutory 25% formula to the first $136,000 in combined parental income (the “statutory cap”), Justice Silber found that the resulting amount provided the appropriate level of support to meet the needs of the parties’ children. Even limiting the award to the father’s share of this cap, the children will be able to continue their pre-separation lifestyle.
With regard to applying the formula to the combined parental income greater than $136,000, Justice Silber reviewed the statutory factors. The relevant factors included:
1. The financial resources of the custodial and non-custodial parent and those of the children: Both of the parties were able to support themselves and the children in a comfortable lifestyle, but the father clearly was the less moneyed party. Further, though the parents both earn substantial incomes, the private school tuition, currently $34,000 a year per child, was a substantial burden.
2. The physical and emotional health of the children and/or special needs: It was anticipated that the unreimbursed medical expenses might be considerable as the older child was having emotional issues.
3. The standard of living the children would have enjoyed had the marriage not been dissolved.
5. The non-monetary contributions each parent will make to the care and well being of the children: Both parents were actively involved in their children’s life. “As the father will be spending a considerable amount of time with the children, and will need to feed, clothe and entertain them while with him, it is appropriate that support be calculated on $136,000 and not more.”
7. A determination that the gross income of one parent is substantially less than that of the other: The father, “though clearly earning a substantial income, earns a great deal less than” the mother.
Justice Silber considered all the factors, “most particularly, the fact that the defendant will be paying his proportionate share of private school tuition expenses for two children at an expensive private school, as well as his proportionate share for their summer camps, extracurricular activities and child care, and will also be paying to live in an apartment somewhere in the expensive neighborhood which are in close proximity to the children.”
The Court found those reasons sufficient not to apply the child support formula to the combined parental income over $136,000. Justice Silber found that, under these circumstances, application of the statutory formula to parental income exceeding $136,000.00 would be unjust and inappropriate.
Justice Silber also noted that she would have found the parties’ incomes to be greater than they stipulated, as each was able to take advantages from their business entities. However, the Court would not interfere with the parties’ stipulation as to their adjusted gross income. The parties combined income for purposes of calculating child support was $423,100.
With the appropriate child support percentage at 25%, the basic child support obligation was fixed at $34,120 (25% of $136,000). The mother’s pro rata share was 59.42%; the father’s 40.58%. The father’s obligation was fixed at $13,846 per year, or $1,154 per month.
The court also provided for the formula reduction in the father’s obligation when the older child reached 21 (the father’s obligation would be reduced to his proportionate share of 17% of 136,000), “unless the parties return to court to modify the child support based upon a change in income or circumstances.”
Justice Silber also ruled that the parties were to split the dependency exemptions permitted on their tax returns: the father to claim the older child, “as they have done since they ‘separated’ but only if he is current with his child support obligations; plaintiff shall claim the younger child.”
After rounding the pro rata shares to 60% and 40%, the Court directed the father to maintain medical insurance for the children, with the parties paying their pro rata shares of unreimbursed health care expenses. Network participating health care providers were required, except in emergencies or upon consent.
Recognizing that “educational expenses may be awarded where warranted by the best interests of the children and ‘as justice requires’, upon a showing of ‘special circumstances’,” Justice Silber required the father to pay his 40% share of the children’s private school tuition, and 40% of the children’s sports and extracurricular activities fees, including summer camp costs.
As for the child-care add-on, Justice Silber determined that only a portion of the mother’s babysitter expense was subject to allocation. The mother worked a four-day schedule, paying the babysitter $950 a week. The “sitter,” however, did the shopping, cleaning and laundry, took the children to their extracurricular activities and also cooked breakfast, dinner and walked the dog.
Finally, the Court found it perfectly appropriate, given the income of the parties, that the mother chose to pay nearly $50,000 a year for household help to enable her to work. However, as the children attended school for an extended part of the day, the Court found that a child care worker employed for 20 hours a week would be sufficient. At the typical rate of approximately $15 per hour, child care costs for 20 hours would amount to $300 per week, approximately $1,200 per month or $15,600 per year. The Court directed the father to pay his 40% share of that reasonable child care expense, capped at $6,300 a year ($120.00 a week). The father’s obligation to pay for child care would terminate when the younger child turned 13.
Comment: I have no doubt that many family law practitioners may be at odds with individual pieces of this decision, or perhaps, the result as a whole. Nevertheless, the opinion reveals the thoughtfulness with which this Court applied the law and exercised its discretion. We are given a good look at just how many decisions a couple asks a judge to make when they take their divorce to trial. It would appear that the parties themselves would always be in a better position to blend their needs, wants and interests through an overall settlement.
Pamela M. Sloan, of Aronson Mayefsky & Sloan, LLP, of Manhattan, represented the wife. Maria Coffinas, of Coffinas & Lusthaus , of Brookyn, represented the husband. Ira Forman, of Brooklyn, served as Attorney for the Children.