Until the amendment of the Child Support Standards Act effective January 24, 2016 (D.R.L. §240[1-b][b][iii][I]; Laws of 2015, c. 387, §3), the rule had been that when a divorce court awards maintenance to a spouse, the amount of annual maintenance is to be deducted from the payor’s income when calculating parental income. However, for those same C.S.S.A. calculations, maintenance was not to be added to the recipient’s income. Thus, for example if in its award, a divorce court awarded a wife (the custodial parent) who had no other income $60,000 per year in maintenance from a husband earning $250,000 per year, the husband’s income for C.S.S.A. purposes would equal $250,000 less FICA, Medicare, and the $60,000 in maintenance, but the wife’s income would still be $0.
The recent amendment changed that anomaly. Effective January 24, 2016 , the alimony or maintenance actually paid or to be paid to a spouse is to be added to the income of the recipient when calculating parental income.
Although it does not expressly so state, it has been held that this amendment is to be applied to cases commenced on or after January 24, 2016, and not to cases commenced before that date. R.I. v. T.I., 2016 NY Slip Op 50664(U), 51 Misc. 3d 1215(A) (Sup. Ct. Kings 2016); C.G. v. F.G., 2016 NY Slip Op 26220, 53 Misc. 3d 229, 235-36, 34 N.Y.S.3d 882, 887-88 (Sup. Ct. Richmond 2016).
Until the amendment, the rule had been that it was error to include maintenance awards as income to the recipient when computing the child support obligation. Krukenkamp v. Krukenkamp, 54 A.D.3d 345 (2nd Dept. 2008); Wallach v. Wallach, 37 A.D.3d 707, (2nd Dept. 2007); Shapiro v. Shapiro, 35 A.D.3d 585 (2nd Dept. 2006); Lee v Lee, 18 A.D.3D 508 (2nd Dept. 2005).
In its November 9, 2016 decision in Castello v. Castello, the Second Department ruled differently. In that case, the court modified a 2013 divorce judgment by changing the child support calculation.
In Castello, the parties were married in 1986, and had four children, two of whom were unemancipated at the time of trial. Rockland County Supreme Court Justice Gerald E. Loehr imputed the husband’s income to be $240,000. Justice Loehr awarded the wife (age 50 at the time of trial) $5,500 per month until “she reaches the age of 63 years and 10 months and is eligible for Social Security, or until her remarriage or either parties’ death.” Justice Roehr also awarded the wife child support, and directed the wife to pay 17% of the children’s unreimbursed medical expenses.
On the husband’s appeal, the Second Department reduced the period of maintenance to eight years. The court noted that the wife had “testified that she could make real estate referrals while working full-time at another job. Although the marriage was of a long duration, the plaintiff stayed home to raise the children, and she did not receive a substantial equitable distribution package, we also consider that the plaintiff no longer had child-rearing responsibilities, and that the defendant was paying for most of the expenses of the children, and was responsible for paying the mortgages and costs of the marital home, as well as those of a rental property and a vacation property owned by the parties. parties. As such, an award of maintenance of $5,500 per month for eight years, or until the plaintiff’s remarriage or the death of either party, would afford the plaintiff a sufficient opportunity to become self-supporting.”
As to child support, the Second Department held Justice Loehr erred in prorating each parent’s share of such expenses 83% to the husband and 17% to the wife. Justice Loehr had imputed $240,000 to the husband and $30,000 to the wife in annual income. The appellate court noted that from his imputed income, the husband was entitled to a deduction for his total annual maintenance payment of $66,000 and FICA taxes of $10,306.20, giving the husband an adjusted income of $163,693.80.
Although the court deducted the correct amount of FICA taxes ($2,295) from the [wife’s] imputed income of $30,000 to arrive at $27,705, the court should have added the total annual maintenance the [wife] received to this amount to arrive at an adjusted income of $93,705 for the [wife].
Of the combined parental income of $257,398.80, the husband’s pro rata share of unreimbursed medical expenses was 63.6% and the wife’s pro rata share was 36.4%. The Second Deparment modified the judgment below to reflect this pro rata proportion.
Supporting its recalculation, the Second Department cited only its decision in Kaufman v. Kaufman, 102 A.D.3d 925, and none of its other cases on point.
However, Kaplan would not seem analogous, if indeed it stands for the proposition for which it was now cited. In that case, the wife was awarded $577 per week in maintenance ($30,004 per year). However, there, it was the wife who was paying child support to the husband. In that case, the trial court awarded child support to the husband from the wife but had deducted FICA and Medicare taxes from the award to arrive at the wife’s adjusted income for child support purposes (maintenance was her only income). We are not told whether the child support award was pursuant to a C.S.S.A. calculation, or because awarding the husband no child support would have been unjust or inappropriate. In any event, on appeal all that the Second Department noted was that as FICA and Medicare taxes were not actually to be paid on maintenance, they should not have been deducted. Thus, the amount of child support was corrected.
Ironically, in Kaufman, the wife was not made responsible to pay any portion of the uncovered medical expenses for the parties’ children; the husband paid 100%. This was the very issue decided in Castello; and the pro rata award changed to include maintenance.
The holding in Castello appears to be at odds with the long line of cases that held that prospective maintenance is not to be included in the recipient’s income for initial child support calculations. That is the very reason the recent amendment was needed.
The issue, then, is whether the “new” rule is to be applied only to cases commenced on or after January 24, 2016, or to all rulings made on or after that date in all cases.
Steven L. Abel, of Nyack, represented the husband.