Petersen v. Petersen , 4 N.Y.S.3d 371 ( 2015 )


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  •                            State of New York
    Supreme Court, Appellate Division
    Third Judicial Department
    Decided and Entered: February 26, 2015                    518793
    ________________________________
    WILLIAM A. PETERSEN,
    Respondent,
    v                                      MEMORANDUM AND ORDER
    MELINDA PETERSEN,
    Appellant.
    ________________________________
    Calendar Date:   January 14, 2015
    Before:   Peters, P.J., McCarthy, Garry and Rose, JJ.
    __________
    Gordon, Tepper & DeCoursey, LLP, Glenville (Jennifer P.
    Rutkey of counsel), for appellant.
    Friedman & Molinsek, PC, Delmar (Michael P. Friedman of
    counsel), for respondent.
    __________
    McCarthy, J.
    Appeal from a judgment of the Supreme Court (Devine, J.),
    entered July 25, 2013 in Albany County, which, among other
    things, ordered plaintiff to pay certain child support to
    defendant, upon a decision of the court.
    Plaintiff (hereinafter the husband) and defendant
    (hereinafter the wife) were married and have one child (born in
    1999). After the parties separated and lived apart for several
    years, the husband commenced this divorce action based on their
    separation agreement. After a finding that the child support
    provision of the separation agreement did not comply with the
    Child Support Standards Act (see Domestic Relations Law § 240
    [1-b] [hereinafter CSSA]), a trial was held to address, among
    other things, child support. Supreme Court granted a divorce,
    -2-                518793
    incorporated the parties' separation agreement except for the
    weekly child support provision, and ordered the husband to pay
    child support in the amount of $414 per week. The wife appeals,
    arguing that the court erred in declining to order child support
    on any income above the CSSA statutory cap.
    Because we partially agree, we modify the child support
    amount. The parties do not dispute the income figures used by
    Supreme Court to arrive at the combined parental income. Nor do
    they dispute the mathematical calculations used to figure the
    child support obligation up to the statutory cap, with the
    husband responsible for 93% of the combined total income,
    resulting in an amount of $414 per week (see Domestic Relations
    Law § 240 [1-b] [b] [4], [5]; [c] [1], [2]). The parties'
    combined parental income of $343,568 exceeded the then-applicable
    statutory cap of $136,000. Therefore, the court was required to
    determine the amount of child support for the combined parental
    income that exceeds the cap, either by applying the statutory
    child support percentage – 17% for one child (see Domestic
    Relations Law § 240 [1-b] [b] [3]) – to that full amount or, if
    the court found through consideration of certain listed factors
    that the noncustodial parent's share using the percentage is
    "unjust or inappropriate," figuring some other appropriate amount
    (see Domestic Relations Law § 240 [1-b] [c] [3]; [f]; Matter of
    Cassano v Cassano, 85 NY2d 649, 653 [1995]). Courts have
    discretion in reaching this determination, but must articulate in
    writing their reasoning and basis for departing from the
    prescribed percentage, including the factors considered and
    record facts related to those factors (see Domestic Relations Law
    § 240 [1-b] [g]; Matter of Cassano v Cassano, 85 NY2d at 655;
    McCoy v McCoy, 107 AD3d 857, 858 [2013]; Moschetti v Moschetti,
    277 AD2d 838, 839-840 [2000]).
    Here, Supreme Court never specifically found that the
    husband's share using the child support percentage on the total
    combined parental income above the cap was unjust or
    inappropriate. The combined parental income above the cap
    ($343,568 - $136,000) is $207,568. Seventeen percent of that
    amount is $35,287, with the husband's portion equaling $32,817.
    Adding that to the husband's portion of the support obligation
    below the cap ($21,514), the husband's support obligation using
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    the child support percentage on the total combined parental
    income equals $54,331, for a weekly amount of $1,044.83.
    We now consider the statutory factors to determine if this
    amount is unjust or inappropriate (see Domestic Relations Law §
    240 [1-b] [f]). The husband has ample financial resources, while
    the wife has fewer resources and the child has no independent
    resources (see Domestic Relations Law § 240 [1-b] [f] [1]).
    Supreme Court found that the parties live in similar houses, take
    similar vacations and have money in the bank, but this finding is
    not fully supported by the record. While the parties' houses may
    be similar and are in the same neighborhood, it appeared that the
    husband made numerous renovations to his home but the wife was
    struggling to maintain her home. The parties each take lake
    vacations, but the husband owns a seasonal home on Lake George
    and has a boat that sleeps two people, while the wife owns one
    share of a property on a small private lake owned by her family
    and has a rowboat with a motor. The wife has some money in the
    bank, but the husband has over $1 million in investments and
    retirement accounts. The parties' financial situations are far
    from similar. On the other hand, the child does attend private
    school, takes vacations with both parents and enjoys a decent
    standard of living, though at the wife's house it is not similar
    to what the standard of living would be had the parties not
    divorced (see Domestic Relations Law § 240 [1-b] [f] [3]).
    The child is physically and emotionally healthy and has no
    special needs (see Domestic Relations Law § 240 [1-b] [f] [2]).
    Both parties make nonmonetary contributions to the child, and no
    extraordinary visitation expenses are incurred (see Domestic
    Relations Law § 240 [1-b] [f] [5], [9]). Neither parent is
    pursuing education, as the wife completed her course of study
    prior to the divorce (see Domestic Relations Law § 240 [1-b] [f]
    [6]). Regarding tax consequences, it appears that the wife took
    the parties' son as an exemption in contravention of their
    separation agreement, providing no tax benefit to her but
    depriving the husband of a tax benefit (see Domestic Relations
    Law § 240 [1-b] [f] [4]). The husband has no other children that
    he must support (see Domestic Relations Law § 240 [1-b] [f] [8]).
    -4-                518793
    The husband's gross income is substantially greater than
    the wife's (see Domestic Relations Law § 240 [1-b] [f] [7]). As
    for other relevant factors (see Domestic Relations Law § 240
    [1-b] [f] [10]), we note that, although the parties' separation
    agreement did not comply with the CSSA (see Domestic Relations
    Law § 240 [1-b] [h]), the wife accepted the agreed-upon $265 per
    week for several years without seeking an upward modification.
    Notably, pursuant to the separation agreement, in addition to
    weekly child support the husband is required to pay other
    amounts, most of which the parties specifically described as
    "additional child support payments," including costs associated
    with the child's private school education, school uniforms, child
    care, school athletic and extracurricular activities and all
    related equipment, $800 per year to the wife for clothing for the
    child, $500 per year to the wife for birthday and Christmas gifts
    for the child, and the costs of the child's health insurance.1
    Despite the weekly child support amount being unenforceable due
    to noncompliance with the CSSA, the husband is still obligated by
    the agreement to pay for these other expenses.
    Several of the factors are neutral here. Considering the
    factors overall, however, including these other amounts that the
    husband is obligated to pay for the child's benefit, we find that
    requiring the husband to pay his pro rata share of the child
    support percentage on the total combined parental income would be
    unjust and inappropriate. On the other hand, we find that he
    should pay child support on a portion of the combined parental
    income above the statutory cap (see Domestic Relations Law § 240
    [1-b] [c] [3]; [g]). Accordingly, the husband should pay his pro
    rata share of the child support percentage on the first $200,000
    of combined parental income, or $608.08 per week (compare Hammack
    v Hammack, 20 AD3d 700, 702-704 [2005], lv dismissed 6 NY3d 807
    1
    Considering the 2013 costs found in the record, the
    private school tuition ($4,575), health insurance ($5,236 for the
    additional cost for the child above a single-person plan),
    clothing allowance ($800) and gift allowance ($500) add up to
    $11,111 per year. This total does not include the costs for the
    husband's other obligations under the agreement, which are more
    flexible and difficult to calculate based on this record.
    -5-                  518793
    [2006]).2
    Peters, P.J., Garry and Rose, JJ., concur.
    ORDERED that the judgment is modified, on the law and the
    facts, without costs, by increasing plaintiff's child support
    obligation to $608.08 per week, and, as so modified, affirmed.
    ENTER:
    Robert D. Mayberger
    Clerk of the Court
    2
    $200,000 x 17% x 93% = $31,620 per year, or $608.08 per
    week.
    

Document Info

Docket Number: 518793

Citation Numbers: 125 A.D.3d 1234, 4 N.Y.S.3d 371

Filed Date: 2/26/2015

Precedential Status: Precedential

Modified Date: 1/12/2023