Calulator on 100s 3In 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.


Continue Reading Reasons To Apply CSSA Formula to Father's $441,000 Income Must Be Stated; No Private School Payment Without Proof Of Superiority Of Education

The Second Department has modified an order of Suffolk County Family Court Attorney-Referee Roseann Orlando to direct that when one parent is working, that parent, prior to making babysitting arrangements with a nonparent, shall first afford the other parent the opportunity to care for the subject child during such work period.

In its August 27,

Considering the add-ons for private school, health care, child care, and extra-curricular activities, imposing a base child support obligation upon a father (the less-moneyed spouse) in excess of his pro rata share of the first $136,000 of combined parental income would be unjust and inappropriate. Such was the holding of Acting Supreme Court Kings County Justice Debra Silber in her August 12, 2013 decision in A.C. v. J.O.

That ruling, at first blush, would appear to be at odds with the Second Department’s August 14, 2013 decision in  Beroza v. Hendler, the subject of Monday’s blog post. There, the appellate court held it was improper for the trial court to have limited the base child support obligation of the father (the less moneyed spouse) to less than his pro rata share of the first $400,000 in combined parental income.

Any comparison, however, must be clouded by the vast number of factors that Justice Silber considered when deciding all of the issues incident to the parties’ divorce.

In A.C. v. J.O., at the time of the commencement of the divorce action in May, 2011, the parties had been married for almost 13 years. They had two children, a daughter now 12 and a son now 10. The parties were still living together. The wife, 52 years old, had her own dental practice, with income stipulated to be $251, 395. The husband, 47, worked as a first assistant director, primarily for television. He also wrote screenplays and recently made a full length film, which he both wrote and directed. The husband’s income was stipulated to be $171,706.

In a lengthy opinion, Justice Silber awarded the mother both physical and legal (decision-making) custody of the two children. Although both parents could handle parenting responsibilities alone, joint custody was not appropriate as the parents’ “cannot easily agree upon anything.” Justice Silber provided a detailed plan for the father’s “parental access” and consultation on major decisions.


Continue Reading No Child Support Awarded Upon Combined Parental Income in Excess of $136,000 Statutory Cap

Handshake 1.jpgParticularly when it comes to agreements fixing child support obligations, “shaking on it” is simply not enough.

Both the Domestic Relations Law and the Family Court Act authorize parents to enter agreements which establish their child support obligations. DRL §§236B(3) and 240(1-b)(h) and FCA §413(1)(h) set out many requirements for such agreements.

Nothing suggests that