Calulator on 100s 6 redThe Third Department gave us insight into its analysis of child support awards in two recent decisions in which it increased those awards.

What to do when the parents’ combined income exceeds the Child Support Standards Act (C.S.S.A.) cap, now $141,000, appears to be, at the trial level, often county-, if not judge-dependent. Use by the lower courts around the state upon these decisions will vary, perhaps greatly.

In Petersen v. Petersen, decided February 26, 2015, the Third Department increased the divorce-action award of Albany Supreme Court Justice Eugene P. Devine (now, himself, sitting on the Third Department).

The parties had one child, born in 1999. After the parties separated and lived apart for several years, the husband commenced this divorce action based on the parties’ separation agreement. After finding that the child support provision of the separation agreement did not comply with the Child Support Standards Act, a trial was held to address, among other things, child support.

Justice Devine granted the divorce, incorporated the parties’ separation agreement except for the weekly child support provision, and ordered the husband to pay child support in the amount of $414 per week, declining to order child support on any income above the C.S.S.A. statutory cap, then $136,000 (and now $141,000). The wife appealed.

The parties did not dispute the income figures used by Justice Devine to arrive at the combined parental income. Nor did they dispute the mathematical calculations used to figure the child support obligation up to the statutory cap, with the husband responsible for 93% of the combined total income, resulting in an base child support obligation of $414 per week. The parties’ combined parental income of $343,568, of which the husband’s income was approximately $320,000, well-exceeded the then-applicable statutory cap of $136,000.

The Third Department noted that Justice Devine had been required to determine the amount of child support for the combined parental income that exceeded the cap, either by applying the statutory child support percentage, 17% for one child, to that full amount or, if the court found through consideration of certain listed factors that the noncustodial parent’s share using the percentage is “unjust or inappropriate,” by figuring some other appropriate amount. The appellate court noted that while courts have discretion in reaching this determination, they must articulate in writing their reasoning and basis for departing from the prescribed percentage, including the factors considered and record facts related to those factors.

Here, Justice Devine never specifically found that the husband’s share using the child support percentage on the total combined parental income above the cap was “unjust or inappropriate,” the husband’s portion equaling $32,817. Adding that to the husband’s portion of the support obligation below the cap ($21,514), the husband’s support obligation using the child support percentage on the total combined parental income would equal $54,331, for a weekly amount of $1,044.83.

The appellate court then considered the statutory factors to determine if this amount was unjust or inappropriate.

  • The husband had ample financial resources, while the wife has fewer resources and the child has no independent resources.
  • While the parties’ houses may be similar and are in the same neighborhood, it appeared that the husband made numerous renovations to his home, but the wife was struggling to maintain her home.
  • The parties each take lake vacations, but the husband owns a seasonal home on Lake George and has a boat that sleeps two people, while the wife owns one share of a property on a small private lake owned by her family and has a rowboat with a motor.
  • The wife has some money in the bank, but the husband has over $1 million in investments and retirement accounts.
  • The child does attend private school, takes vacations with both parents and enjoys a decent standard of living, though at the wife’s house it is not similar to what the standard of living would be had the parties not divorced.
  • The child is physically and emotionally healthy and has no special needs.
  • Both parties make nonmonetary contributions to the child.
  • No extraordinary visitation expenses are incurred.
  • Neither parent is pursuing education, as the wife completed her course of study prior to the divorce.
  • Regarding tax consequences, it appears that the wife took the parties’ son as an exemption in contravention of their separation agreement, providing no tax benefit to her but depriving the husband of a tax benefit.
  • The husband has no other children that he must support.
  • The husband’s gross income is substantially greater than the wife’s.
  • Although the parties’ separation agreement did not comply with the C.S.S.A., the wife accepted the agreed-upon $265 per week for several years without seeking an upward modification.

Notably, pursuant to the agreement, in addition to weekly child support the husband was required to pay other amounts, most of which the parties specifically described as “additional child support payments,” including costs associated with the child’s private school education, school uniforms, child care, school athletic and extracurricular activities and all related equipment, $800 per year to the wife for clothing for the child, $500 per year to the wife for birthday and Christmas gifts for the child, and the costs of the child’s health insurance. Considering the 2013 costs found in the record, the private school tuition ($4,575), health insurance ($5,236 for the additional cost for the child above a single-person plan), clothing allowance ($800) and gift allowance ($500) added up to $11,111 per year. This total did not include the costs for the husband’s other obligations under the agreement, which are more flexible and difficult to calculate based on this record.

Despite the weekly child support amount being unenforceable due to noncompliance with the C.S.S.A., the husband is still obligated by the agreement to pay for these other expenses. [Comment: the issue of whether one portion of the overall child support agreement may be set aside and re-determined without reconsidering the entire award is itself a challenging one. Here, the Third Department stated that it tempered its award by those extras.]

Considering the factors overall, however, including these other amounts that the husband is obligated to pay for the child’s benefit, the Third Department found that requiring the husband to pay his pro rata share of the child support percentage on the total combined parental income would be unjust and inappropriate. On the other hand, the appellate court found that the father should pay child support on a portion of the combined parental income above the statutory cap: on the first $200,000 of combined parental income, or $608.08 per week ($200,000 x 17% x 93% = $31,620 per year, or $608.08 per week).

In the second decision, Vantine v. Vantine, also decided February 26, 2015, the Third Department modified the award of Madison County Supreme Court Justice Dennis K. McDermott.

The parties were married in June 2003 and had one child together born in 2004. The wife commenced this divorce action December 2010.

Prior to trial, the parties agreed to joint legal custody of the child, primary residence with the wife and liberal parenting time for the husband. A trial ensued as to equitable distribution, maintenance and child support.

Among resolving other issues as to the values of two businesses and separate property interests, the husband was directed to pay $2,700 per month in child support, 100% of health insurance premiums and related medical costs for the child, and 100% of child’s college tuition and associated expenses. The wife was awarded $6,700 a month in maintenance for a period of three years. Her application for counsel fees and the cost of expert services was denied. The wife and husband cross-appealed.

The court upheld Justice McDermott’s equitable distribution and maintenance rulings, and remitted the matter as to counsel and expert fees. However, the Third Department agreed with the wife and attorney for the child that the amount of child support should be increased.

The husband’s adjusted gross income in 2011 had been 902,277. (His income was reportedly more than 50% higher in 2009 and 2010 than in 2011). The parties did not dispute Justice McDermott’s calculation that the husband’s pro rata share of basic child support was 91.8%, resulting in an obligation of $21,224 ($1,769 per month) on the initial $136,000 of combined parental income for one child (17%), the cap at the time.

With regard to the income exceeding $136,000, Justice McDermott increased the child support to $2,700 per month. [This grosses up to a 17% award on $190,588 of the husband’s income.] The Third Department found that amount inadequate.

Here, the record reflected, among other things, that the child has special needs and emotional health issues that consume considerable amounts of the wife’s time and require additional resources to adequately address. The husband’s income and financial resources far exceed those of the wife, the child participated in various trips, recreational and instructive activities, enjoying a comfortable standard of living, and an additional amount is necessary to keep in place the standard of living that the child would have enjoyed had the marriage continued. Under all the facts and circumstances, the husband’s child support obligation should be $5,000 per month (grossing up to a 17% award on $352,941 of the husband’s income).

The Third Department noted that this reflected “the addition of about 5% of the husband’s income over $136,000.” [That calculation is the husband’s income of $902,277, less the $136,000 cap, or $766,277 (perhaps the $136,000 number should have been reduced to $124,848, the husband’s 91.8% of the total income cap, netting to $777,429). On the income up to the cap, the husband’s base award would be $21,224. Increasing the total support award to $5,000 per month ($60,000 per year), represents an increase of $38,776 over the husband’s obligation to the cap. Dividing this $38,776 increase by the husband’s $766,277 in income over $136,000, results in 0.0506, or 5.06% (4.99% if using the husband’s 91.8% share of the cap)].

In Petersen, Jennifer P. Rutkey, of Gordon, Tepper & DeCoursey, LLP, of Glenville, represented the wife. Michael P. Friedman, of Friedman & Molinsek, P.C., of Delmar, represented the husband.

In Vantine, Brian Michael Miga, of Utica, represented the wife. Frank J. Vavonese, of counsel to Melvin & Melvin, PLLC, of Syracuse, represented the husband. Karin Morris, of Syracuse, served as attorney for the child.