Capone v. Westbrook

214 A.D.3d 975

185 N.Y.S.3d 788

In the Matter of Andrea CAPONE, appellant,

v.Jonathon WESTBROOK, respondent.

2021–09598

Docket No. F–19774–18

Supreme Court, Appellate Division, Second Department, New York.

Submitted—March 2, 2023

March 29, 2023

Andrea Grande–Capone, suing herein as Andrea Capone, Brooklyn, NY, appellant pro se.

Jonathon Westbrook, Jersey City, New Jersey, respondent pro se.

COLLEEN D. DUFFY, J.P., LINDA CHRISTOPHER, JOSEPH A. ZAYAS, LILLIAN WAN, JJ.

DECISION & ORDER

In a proceeding pursuant to Family Court Act article 4, the mother appeals from an order of the Family Court, Kings County (Susan Quirk, J.), dated December 1, 2021. The order denied the mother's objections to stated portions of an order of the same court (Gabriella F. Richman, S.M.) dated October 13, 2021, which, after a hearing, and upon its findings of facts dated October 12, 2021, inter alia, imputed an annual income to the father in the sum of only $114,064.56 for the purpose of calculating his child support obligation and declined to direct the father to reimburse the mother for certain child care expenses.

ORDERED that the order dated December 1, 2021, is affirmed, without costs or disbursements.

The parties have one child together. In August 2018, the mother commenced this proceeding pursuant to Family Court Act article 4 for child support from the father. In an order dated October 13, 2021, after a hearing, and upon findings of fact dated October 12, 2021, a Support Magistrate directed the father to make semi-monthly payments of $700 in basic child support and to pay arrears in the sum of $53,898.20. These directives were based upon the Support Magistrate's calculation that the father's gross earnings for the 2020 tax year totaled $114,064.56. In addition, the Support Magistrate rejected the mother's contention that the father should be directed to reimburse her for certain child care expenses she had allegedly incurred. Thereafter, the mother filed objections to the Support Magistrate's order. In an order dated December 1, 2021, the Family Court denied the mother's objections. The mother appeals.

The Child Support Standards Act (hereinafter CSSA) "sets forth a formula for calculating child support by applying a designated statutory percentage, based upon the number of children to be supported, to combined parental income up to a particular ceiling" ( Spinner v. Spinner, 188 A.D.3d 748, 751, 134 N.Y.S.3d 377 [internal quotation marks omitted]; see Domestic Relations Law § 240 ; Family Ct Act § 413 ; Holterman v. Holterman, 3 N.Y.3d 1, 10–11, 781 N.Y.S.2d 458, 814 N.E.2d 765 ). Income " ‘shall mean, but shall not be limited to,’ income reported on the most recent federal tax return" ( Cazar v. Browder, 191 A.D.3d 837, 838, 138 N.Y.S.3d 900, quoting Domestic Relations Law § 240[1–b][b][5] ).

Here, the Support Magistrate properly calculated the father's income based on, among other things, his 2020 W–2 forms, which were admitted into evidence at the hearing. Contrary to the mother's contention, the Support Magistrate was not required to rely exclusively on the father's testimony that some of his pay statements admitted into evidence were "representative of" his annual salary, while ignoring other evidence of his income to the contrary (see Koutsouras v. Mitsos–Koutsouras, 198 A.D.3d 630, 631, 152 N.Y.S.3d 331 ; Cazar v. Browder, 191 A.D.3d at 838, 138 N.Y.S.3d 900 ).

The CSSA also provides that "[w]here the custodial parent is working ... and incurs child care expenses as a result thereof, the court shall determine reasonable child care expenses and such child care expenses, where incurred, shall be prorated in the same proportion as each parent's income is to the combined parental income" ( Family Ct Act § 413[1][c][4] ; see Domestic Relations Law § 240[1–b][c][4] ; Matter of Quashie v. Wint, 148 A.D.3d 905, 906, 49 N.Y.S.3d 536 ; Matter of Pittman v. Williams, 127 A.D.3d 755, 757, 7 N.Y.S.3d 227 ). A similar apportionment of child care expenses is authorized where the custodial parent "is seeking work and incurs child care expenses as a result thereof" ( Family Ct Act § 413[1][c][6] ; see Domestic Relations Law § 240[1–b][c][6] ).

Here, the Support Magistrate properly concluded that it would not be...