Monaco v. Monaco

184 N.Y.S.3d 171

In the Matter of Lorraine MONACO, respondent,

v.Robert MONACO, appellant.

2022-05126

Docket No. F-21687-13/21D, E

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

Submitted—January 20, 2023

March 1, 2023

The Sallah Law Firm, P.C., Holtsville, NY (Dean J. Sallah of counsel), for appellant.

Michael C. Sordi, Northport, NY, for respondent.

MARK C. DILLON, J.P., REINALDO E. RIVERA, JOSEPH J. MALTESE, HELEN VOUTSINAS, JJ.

DECISION & ORDER

In related proceedings pursuant to Family Court Act article 4, the father appeals from an amended order of the Family Court, Suffolk County (Paul M. Hensley, J.), dated March 23, 2022. The amended order, insofar as appealed from, granted the mother's objection to so much of an order of the same court (Darlene Jorif–Mangane, S.M.) dated December 3, 2021, as, after a hearing, directed the father to pay basic child support in the sum of $759 biweekly for the parties' two younger children for the period from September 23, 2020, through August 8, 2021, the sum of $1,220 biweekly for the parties' three children for the period from August 9, 2021, through February 25, 2022, and the sum of $1,051 biweekly for the parties' two younger children effective February 26, 2022, and thereupon, in effect, vacated that portion of the order dated December 3, 2021, and directed the father to pay basic child support in the sum of $1,329 biweekly for the parties' two younger children for the period from September 23, 2020, through August 8, 2021, the sum of $1,993 biweekly for the parties' three children for the period from August 9, 2021, through February 25, 2022, and the sum of $1,718 biweekly for the parties' two younger children effective February 26, 2022. The notice of appeal from an order dated February 4, 2022, is deemed to be a notice of appeal from the amended order dated March 23, 2022 (see CPLR 5512[a] ).

ORDERED that the amended order dated March 23, 2022, is reversed insofar as appealed from, on the law, on the facts, and in the exercise of discretion, with costs, the mother's objection to so much of the order dated December 3, 2021, as directed the father to pay basic child support in the sum of $759 biweekly for the parties' two younger children for the period from September 23, 2020, through August 8, 2021, the sum of $1,220 biweekly for the parties' three children for the period from August 9, 2021, through February 25, 2022, and the sum of $1,051 biweekly for the parties' two younger children effective February 26, 2022, is denied, and that portion of the order dated December 3, 2021, is reinstated.

The parties were married in 1996 and have three children together. In February 2013, the parties executed a stipulation of settlement, which was incorporated but not merged into their judgment of divorce entered June 24, 2013. Pursuant to the parties' stipulation, the father's child support obligation was the sum of $1,618.02 every two weeks. In determining the father's child support obligation, the parties agreed to apply the statutory percentage under the Child Support Standards Act (hereinafter CSSA) to their total combined parental income of $185,980.

In September 2020, the father filed a petition seeking a downward modification of his child support obligation. Subsequently, the mother filed a petition for an upward modification of the father's child support obligation. After a hearing, in an order dated December 3, 2021, a Support Magistrate, in effect, granted the father's petition and denied the mother's petition. The Support Magistrate found that the parties' combined parental income under the CSSA was $251,708.46, which exceeded the statutory cap of $154,000. The father's child support obligation on the combined parental income up to the statutory cap was the sum of $1,220 biweekly for three children and the sum of $1,051 biweekly for two children. His child support obligation would be $1,993.34 and $1,718.40 biweekly, respectively, if the statutory child support percentages of 29% for three children and 25% for two children were applied to the entire amount of combined parental income. The Support Magistrate determined that it was appropriate to apply the statutory percentages to the combined parental income up to the statutory cap. The Support Magistrate directed the father to pay basic child support in the sum of $1,220 biweekly for the period from August 9, 2021, through February 25, 2022, during which all three children were in the mother's care, and the sum of $1,051 biweekly for the two younger children effective February 26, 2022, when the oldest child turned 21, as well as a lesser amount for a period during which the oldest child had temporarily resided with the father.

The mother filed objections to the Support Magistrate's order, contending, among other things, that the Support Magistrate erred in failing to calculate child support on the combined parental income over the statutory cap. The Family Court granted the mother's objection to so much of the Support Magistrate's order as set forth the father's basic child support obligation. The court determined that the Support Magistrate should have used the entire combined parental income, including the amount exceeding the statutory cap, in calculating the father's child support obligation. The court directed the father to pay basic child support in the sum of $1,329 biweekly for the parties' two younger children for the period from September 23, 2020, through August 8, 2021, the sum of $1,993 biweekly for the parties' three children for the period from August 9, 2021, through February 25, 2022, and the sum of $1,718 biweekly for the parties' two younger children effective February 26, 2022. The father appeals. The father's sole contention on appeal is that the court should not have calculated child support on the combined parental income over the statutory cap.

"The 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" ( Matter of Giraldo v. Fernandez, 199 A.D.3d 796, 798, 158 N.Y.S.3d 149 [internal quotation marks omitted]; see Matter of Ward v. Hall, 188 A.D.3d 1222, 1223, 132 N.Y.S.3d 879 ). "Where, as here, the combined parental income exceeds the statutory cap, in fixing the basic child support obligation on income over the cap, the court has the discretion to...