Pencil calculationIn its May 6, 2015 decision in Thompson-Fleming v. Fleming, the Appellate Division, Second Department, reversed the determination of Kings County Family Court Support Magistrate Kathryn A. Baur that had based a child support award on the father’s 2013 mid-year earnings-to-date. The Magistrate failed to account for the fact that the father had been unemployed for the first three months of that year, beginning his employment on March 28, 2013.

The father’s year-to-date earnings were shown on the his pay stub for the two-week period ending on July 13, 2013. Rather than using those year-to-date earnings, the Second Department held that the Magistrate should have annualized the father’s bi-weekly pay. Under these circumstances, the Support Magistrate should have taken the pay stub’s pay period figure and multiplied that figure by 26 to determine the father’s annual income, rather than rely upon the year-to-date figure.

As the Support Magistrate miscalculated the father’s income in determining the father’s child support obligation, Kings County Family Court Judge Michael A. Ambrosio should have granted the mother’s objection to Magistrate Baur’s order and recalculated the father’s income. Therefore, the appellate court remitted the matter for a recalculation of the father’s annual income and a redetermination of his child support obligation in accordance therewith. In the interim, the father was directed to continue to pay the mother the sum of $535 bi-weekly in child support.