In its April 1, 2015 decision in Pittman v. Williams, the Appellate Division, Second Department, reversed a decision of Supreme Court, Kings County Court Attorney/Referee (and now Family Court Judge) J. Machelle Sweeting that awarded child support equal to 17% of the father’s entire $441,000 income.  The Second Department also deleted a requirement that the father pay private school tuition after preschool, and allocated the wife’s child care expense equally between the father’s child and another of the mother’s children for whom care was provided.

In this child support proceeding, the parties’ combined income was $489,937. The father’s income represented 90% of this sum or C.S.S.A.-adjusted income of approximately $441,000 per year; the mother’s 10% share was approximately $49,000. Referee Sweeting directed the father to pay child support in the sum of $6,246 per month, child care expenses in the sum of $291.60 per week, and his pro rata share of the child’s tuition at the Brooklyn Waldorf School.

The Second Department reversed and remitted the matter for a new determination of the amount of the basic child support obligation.

The Child Support Standards Act sets forth a formula for calculating child support by applying a designated statutory percentage, here 17% for one child, to combined parental income up to a particular ceiling. The court, in fixing the basic child support obligation on income over the ceiling, i.e., the “statutory cap” (in this case, $136,000), has the discretion to apply the factors set forth in the statute, or to apply the statutory percentage, or to apply both.

However, there must be some record articulation of the reasons for the court’s choice to facilitate review. The court’s decision should reflect a careful consideration of the stated basis for its exercise of discretion, the parties’ circumstances, and its reasoning why there should or should not be a departure from the prescribed percentage. In addition to providing a record articulation for deviating or not deviating from the statutory formula, a court must relate that record articulation to the statutory factors.

Here, the Second Department held that the Referee properly determined that the parties’ combined parental income was $489,937. However, when determining the amount of child support, Referee Sweeting failed to articulate her reasons for applying the statutory percentage of 17% to the combined parental income over the statutory cap of $136,000. As a result, her determination was reversed. It was held that the matter must be remitted for a new determination in this regard and the court must articulate its reasons for the new determination.

Moreover, where the custodial parent is working and incurs child care expenses, the court is to determine reasonable child care expenses and such child care expenses, where incurred, shall be prorated. Each parent’s pro rata share shall be separately stated and added to the parent’s basic child support obligation.

Here, the Referee properly determined that the mother incurred $425 in child care expenses each week. However, the Referee erred in calculating the amount of child care expenses to be paid by the father. Since the child care provider cared for both the subject child, as well as the mother’s son from a previous relationship, the child care expenses should be divided equally between the two children. Consequently, the cost of caring for the subject child was $212.50 per week, and the father’s 90% pro rata share of the child care expenses was 191.25 per week.

Still further, the court may direct a parent to contribute to a child’s educational expenses, even in the absence of special circumstances or a voluntary agreement of the parties. However, a court does not have unfettered discretion in making such an award. In determining whether to award educational expenses, the court must consider the circumstances of the case, the circumstances of the respective parties, the best interests of the children, and the requirements of justice.

One of the factors which must be considered in a case of this nature is whether, and to what extent, there exists a real difference in quality between the education furnished by the public schools, on the one hand, and that which is available at the private school which the child in question attends or plans to attend, on the other.

Here, the evidence established that the child’s preschool attendance at the Brooklyn Waldorf School was the best option for the child. However, there was no evidence in the record to suggest that, upon the conclusion of the preschool period, the education provided by the public schools will be inferior to that provided by the Brooklyn Waldorf School. Consequently, absent proof that it would be in child’s best interests to continue attending the Brooklyn Waldorf School, the father should not be responsible for paying her tuition once she is old enough to enter the public school system.

Keith S. Orenstein and Pollack, Pollack, Isaac & De Cicco, LLP, of counsel to Orenstein & Orenstein, LLC, of Manhattan, represented the father. Patricia Ann Fersch and Meryl A. Hoeft of Fersch Petitti LLC, of Manhattan, represented the mother.