In its July 5, 2017 decision in Decillis v. Decillis, the Appellate Division, Second Department, recognized, but significantly reduced a credit against a formula child support obligation for the father’s extraordinary visitation travel expenses.
The parties were the parents of a child born in 2003. The mother filed a petition for child support. After imputing annual income of $43,000 to the mother, Suffolk County Family Court Support Magistrate Kathryn L. Coward determined that the father’s formula basic child support obligation would be $572 biweekly (grosses up to income of $94,729 per year). However, after gaving the father a $168 biweekly credit to compensate him for the “extraordinary” expenses associated with visitation, the Magistrate directed him to pay child support in the sum of $404 biweekly.
The Second Department first found that the Support Magistrate properly imputed $43,000 of income to the mother based upon her prior income, her choice to engage in only part-time employment, and her current living arrangement, in which she did not pay rent or related housing expenses.
However, the appellate court found that the Support Magistrate improvidently exercised its discretion in awarding the father a $168 credit against his child support obligation $168 for the “extraordinary” expenses associated with visitation, including $67 for travel expenses.
Pursuant to the Family Court Act:
the court must direct the noncustodial parent to pay his or her pro rata share of the basic child support obligation unless it finds that the pro rata share is “unjust or inappropriate” based upon consideration of factors such as “extraordinary expenses incurred by the non-custodial parent in exercising visitation.”
Here, the record did not support the conclusion that the father’s formula obligation was “unjust or inappropriate” so as to warrant a credit against his child support obligation for the cost of meals and entertainment during visitation. Furthermore, although the Support Magistrate improvidently exercised its discretion to the extent that it awarded the father a biweekly credit in the sum of $67 against his child support obligation for extraordinary travel expenses incurred in exercising his visitation, the Second Department nevertheless concluded that the record supported the award of a credit in the sum of $33 for such expenses. Accordingly, the father’s $572 formula biweekly obligation was reduced to $539.
Notably, the appellate court did not tell us why the $33 in travel expenses were so extraordinary as to warrant the credit, or why the other $135 of remaining travel, meals and entertainment expenses were not.
The Second Department also upheld the Support Magistrate’s denial of the mother’s request that the father contribute to the costs of private school tuition and expenses. The child attended public school while living in Suffolk County, and the parties never agreed to share in the costs of private school. There was also no specific testimony in the record as to any particular scholastic needs of the child that would justify such an award.
Finally, appellate court upheld the Support Magistrate’s denial of the mother’s request that the father contribute to the cost of extracurricular activities.
Matthew K. Mady, of Castrovinci & Mady, of Smithtown, represented the father.