In its February 18, 2016 decision in Michael J. D. V. Carolina E. P., the Appellate Division, First Department, held that because the trial court did not follow the precise requirements of the CSSA when determining that private school education and summer, extracurricular and weekend activities should be paid over and above basic child support, those awards would be vacated.
When making child support awards, the requirements of the Child Support Standards Act (CSSA) (Family Court Act §413 and Domestic Relations Law §240[1-b]) must be strictly followed. After the calculation of the basic periodic child support amount, the statute allows for the payment of certain categories of enumerated add on expenses, prorated according to the parents’ relative incomes.
The add on expenses expressly addressed in the CSSA are:
- child care expenses when a custodial parent is working, looking for work and/or engaged in an educational or training program that will lead to employment;
- health insurance and unreimbursed medical expenses; and
- educational expenses.
In the case before it, the parties were the parents of a son born December 17, 2008. The parties were never married and were not living together when the child was born. After the father learned he had a son, the mother and the child moved into the father’s luxury apartment in lower Manhattan. The parties were hopeful of continuing as a family and while living together, discussed marriage and the possibility of having a second child. They also discussed their son’s future, and the possibility he would attend a private school. It was their expectation at that time that the child would enjoy the “best of everything.” This living arrangement, however, was short-lived, lasting only four months (from May – August, 2009).
A trial on the mother’s child support claims was held in February 2011. Although the father was present at trial, only the mother testified. This was due to an earlier discovery sanction imposed by the lower court, precluding the father from introducing evidence at trial concerning financial issues, and drawing adverse inferences on the father’s financial claims and favorable inferences on the mother’s financial claims.
The mother’s testimony mainly concerned their lifestyle as a family and the plans the parties had made for the child’s future at that time. She also testified that the father had enrolled the child (then only a few months old), in swimming classes with a private instructor, as well as in a weekend music class and a song and stories class. According to the mother, the father had told her he wanted the child to attend a private school, such as the Trinity School in New York City.
Once the parties plaintiff separated [when the child was eight months old, the lessons stopped. At the time of trial the child, then two years old, was not enrolled in any school program. The mother testified that she intended to be a full time mother to their son.
Supreme Court, New York County Justice Ellen Gesmer determined that the father’s income for child support purposes was $128,741.40. With the mother having no income, parties’ combined parental income was $128,741.40 and that the basic child support obligation was 17% of that amount, or $21,886.04 per year ($1,823.84 per month).
Add on costs for health insurance, unreimbursed medical costs, education and extracurricular activities were also awarded to be paid over and above basic child support and were allocated 100% to the father and 0% to the mother. On appeal, the father did not challenge the award for basic child support, or the direction that he pay for medical insurance and the unreimbursed medical costs for the child.
The father did challenge Justice Gesmer’s order that commencing with the 2013-14 academic year (shortly before the child’s 5th birthday) and until the child’s graduation from high school, the father was required to pay 100% of private school tuition up to the cost of tuition for Trinity.
The First Department noted that education expenses are an expressly enumerated add on expense that may be awarded according to an express statutory standard: regard for the circumstances of the case and of the respective parties and in the best interests of the child, and as justice requires (Family Court Act § 413[c]; Domestic Relations Law § 240[1-b][f]).
While a 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,” in order to do so, 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.
Justice Gesmer had not articulated a reason for ordering the father to pay for private school, other than the informal discussions the parties had about their son’s future while they briefly lived together, when the child was only a few months old. At the time of trial, the child was not yet school age, he was not enrolled in any regular educational program, and there is no record that the child has any special needs or gifts. The First Department held the circumstances of these parties and their son did not present a justifiable basis to impose a private school obligation on the father. His income, as it was determined by the trial court even after drawing adverse inferences to his claims, was not at a sufficiently high level that it alone provided a sufficient basis for requiring private school for the child.
The CSSA treats differently the summer, extra curricular and weekend activities the court below also awarded. Such expenses are not expressly delineated as add on expenses in the statute.
The First Department noted that basic child support is presumed to meet all the child’s basic needs. Thus, the expenses of leisure, extracurricular and enrichment activities, such as after school clubs, sporting activities, etc., are usually not awarded separately, but are encompassed within the basic child support award. However, a court can order a parent to pay for these expenses over and above basic child support if a a deviation from the basic statutory formula is shown to be warranted.
Pursuant to Domestic Relations Law § 240 [1-b][f] (Family Court Act § 413[f]) “[u]nless the court finds that the non-custodial parent[‘s] pro-rata share of the basic child support obligation is unjust or inappropriate, which finding shall be based upon consideration of [certain] factors” enumerated in the CSSA, the child support calculation under the statute is presumptively correct.
There are 10 enumerated factors to consider before deviating. They include:
- the financial resources of the parties and child;
- the health, needs and aptitude of the child;
- the standard of living the child would have enjoyed had he household not been dissolved;
- tax consequences;
- nonmonetary contributions that a parent makes;
- educational needs of either parent;
- disparity in income of the parents;
- other child support obligation of the non-custodial parent;
- extraordinary expenses incurred in visitation; and
- any other factor that the court finds relevant.
A trial court must articulate its reasons for making such a deviation from basic child support and relate those reasons to the statutory factors.
Justice Gesmer also ordered that, commencing with the 2012-13 academic year (the year before private school tuition was to be paid) until the child’s graduation from high school, the father would be is responsible for paying 100% of the child’s extracurricular activities including after school, weekend and summer activities. No benchmark was provided on what these activities could include and there was no cap on how much they could cost.
These categories of expenses are not expressly enumerated add on expenses in the CSSA and Justice Gesmer had not articulated why a deviation requiring their separate payment was appropriate in this case. Here, as the mother did not intend to work, there could be no recovery of child care costs. Consequently, none of these expenses could be viewed as alternatives to such care.
These expenses are not expressly enumerated add on expenses in the CSSA and the trial court failed to articulate why a deviation requiring their separate payment was appropriate in this case. . . . [I]n order for these additional expenses to be properly added to basic child support, the trial court needed to articulate the basis for the deviation.
In order for these additional expenses to be properly added to basic child support, the trial court needed to articulate the basis for the deviation. Given the parties’ brief time living as a family, it could not be said that a standard of living was established for the child. The trial court primarily based its award on the conclusion that had the family remained intact, the child, as the son of a lawyer, would have probably enjoyed a certain standard of living. The consideration of this solitary factor, coupled with the court’s own determination of the parties’ financial resources, did not, however, support the addition of unlimited add on extracurricular expenses that deviate from basic child support.
Accordingly, Justice Gesmer’s order was modified to vacate the directions to pay private school tuition and for summer, extracurricular and weekend activities.
Sergio Villaverde, of Manhattan, represented the mother. Michael J.D. represented himself.