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Respondent Objects to Child Support Order


A New York Family Lawyer said that, objections filed by Respondent, the non-custodial parent, to an order of the Support Magistrate in favor of Petitioner modifying a child support order of $25 per week for birth expenses by an additional $62 per week for current child support of the parties’ one-year-old son. Specifically, respondent contends that the Support Magistrate’s findings are inaccurate and fail to reflect his current financial situation, including his other confinement and support obligations in Essex and Saratoga counties, respectively.

A New York Custody Lawyer said that, the Child Support Standards Act (CSSA) requires all child support determinations to be based upon the income of each parent less certain statutory deductions, the net amounts of which are then added together to arrive at the parties’ “combined parental income”. A party’s income generally consists of his/her gross income “as should have been or should be reported in the most recent federal tax return”, and may be calculated based upon the party’s most recent pay stubs. A court is not bound by the income reported in an individual’s income tax return, and has considerable discretion to use other resources available to a parent in determining a child support award including “money, goods or services provided by friends and relatives”. The CSSA requires downward adjustments of each party’s income for certain items of expense and income, such as FICA (medicare and social security), unreimbursed employee business expenses, alimony and maintenance actually paid, income from public assistance and supplemental social security, and child support actually paid pursuant to a court order on behalf of any child for whom the parent has a legal duty of support and who is not subject to the instant action”.

A Suffolk County Family Lawyer said that, following these adjustments, the parties’ respective incomes are added together to arrive at the “combined parental income” upon which is calculated the “basic child support obligation”, consisting not only of child support but also child care expenses incurred by the custodial parent, apportionment of “future reasonable health care expenses of the child not covered by insurance”, and under appropriate circumstances educational expenses “in the best interests of the child as justice requires”. The amount of child support is determined by multiplying the combined parental income (up to $80,000) by the CSSA child support percentage applicable for the number of children of the parties, the result of which is then “prorated in the same proportion as each parent’s income is to the combined parental income” to arrive at the non-custodial parent’s child support obligation. Each parent’s pro rata share of the combined parental income is also used to apportion “each parent’s share of future reasonable health care expenses of the children not covered by insurance”, as well as child care expenses. “Where the custodial parent is working, or receiving elementary or secondary education, or higher education or vocational training which the court determines will lead to employment”, each parent’s pro rata share of those expenses must be “separately stated and added to the” child support amount. If the custodial parent “is seeking work and incurs child care expenses as a result thereof”, “the non-custodial parent’s share shall be separately stated and paid in a manner determined by the court”.

A Suffolk County Custody Lawyer said that, at the hearing before the Support Magistrate held on November 30, 2007, respondent’s income for child support purposes was determined to be $18,901.72. Respondent testified that since early September 2007 he has been working 35-40 hours per week as a waiter, earning $7.25 per hour plus tips. He also admitted to living with his parents without contributing room and board. Instead of relying solely upon respondent’s 2006 tax return which reported gross income of $13,702, the Support Magistrate used the wages and tips reported in respondent’s most recent pay stubs to calculate respondent’s annual income as $18,193.76. Due to respondent’s living situation, additional income was imputed to respondent in the amount of $6,000 annually ($500 per month), which resulted in total income of $24,193.76. This figure was properly reduced by a total of $5,292.04-$1,392.04 in FICA taxes (medicare and social security) and $3,900.00 in court-ordered current child support actually paid by Kelley for his other child at the rate of $75.00 per week.

The issue in this case is whether the Support Magistrate’s findings on child support is inaccurate and fail to reflect respondent’s current financial situation, including his other confinement and support obligations in Essex and Saratoga counties, respectively.

The court held that the Support Magistrate did not abuse his discretion in using respondent’s recent pay stubs to calculate his annual income, or in imputing income to respondent since a court may attribute or impute income from other resources “so long as the court articulates the bases for the imputation and its calculations are supported in the record”. The fact finder’s determination concerning imputation which is almost always based on the resolution of credibility questions is given considerable deference”. Respondent’s objection that he was not properly credited with his court-ordered payments through the Essex County Child Support Collection Unit for his other child is without merit since he seeks credit for payments made toward birth expenses and he is only entitled to a credit for current child support actually paid. His recourse is to proceed by way of a petition for modification before the Support Magistrate.

On review of objections to the findings of a support magistrate, Family Court has the authority to make new findings of fact and a new order without holding a hearing (FCA §439[e]). Review of the record here discloses that the Support Magistrate failed to impute income to petitioner despite the fact that she was living with her parents rent free, and the record is silent as to the reason for not doing so. She did contribute $50.00 per week ($216.55 per month) for food, and therefore the amount to be imputed to her should be the difference between that contribution and the $500 per month imputed to respondent. This amounts to an additional $3,402 ($283.45 per month) and increases petitioner’s income for child support purposes to $27,413 from the $24,011 (wages of $26,000 less FICA of $1,989) determined by the Support Magistrate.

As a result of the upward modification of petitioner’s income, the parties’ combined parental income amounts to $46,315, rather than $42,913 as calculated by the Support Magistrate, with respondent’s pro rata share being 41% instead of 44%. Applying the CSSA child support percentage of seventeen percent (17%) to the combined parental income results in an annual child support obligation of $7,871, of which respondent’s pro rata share is $3,228 per year, or $62 per week an amount unchanged from the Support Magistrate’s findings. His pro rata share of future medical expenses for the parties’ child not covered by health insurance is 41%.

The record also reveals that no child care expenses were apportioned among the parties despite petitioner’s undisputed testimony that she incurs such expenses at the rate of $135 per week due to her work schedule, and no claim has been made by respondent that these expenses are unreasonable or that he has paid any monies toward such child care expenses. The requirement that reasonable child care expenses be apportioned, separately stated, and added to the amount of child support, is mandatory (FCA §413[1][c][4]). Petitioner’s 59% share of child care expenses is $80, and respondent’s 41% share of such expenses, amounting to $55, shall be paid to petitioner through the Essex County Child Support Collection Unit commencing March 7, 2008. Since child support orders are required to be made “effective as of the date of the filing of the petition therefor” (FCA §449[2]), respondent’s arrears for child care expenses are established at $1320.00, retroactive to the date of filing, and shall be paid to petitioner in care of the Essex County child support Collection Unit at the rate of $5.00 per week commencing March 7, 2008.

Accordingly, the court held that, respondent’s objections are granted in part to the extent provided above, but they are in all other respects denied.

In computing child support, the court may attribute or impute income from other resources “so long as the court articulates the bases for the imputation and its calculations are supported in the record. If you have issues with regard to the computation of child support, seek the assistance of a New York Family Attorney and/or New York Child Support Attorney at Stephen Bilkis and Associates in order to know the same is disproportional to your present income. Call us.

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