Opinion
October 16, 1997
Appeal from the Supreme Court, Chenango County (Ingraham, J.).
On a prior appeal ( 229 A.D.2d 690), we, inter alia, remitted this matter to Supreme Court to determine whether it would be unjust or inappropriate to establish defendant's child support obligation predicated upon his annual imputed income of $23,450. Following a hearing, Supreme Court answered our inquiry in the negative, fixing defendant's weekly child support obligation at $130 less a $40 per week credit for the costs of the children's health care coverage, resulting in a net weekly payment of $90. Defendant appeals. Our discussion will be confined to the propriety of the amount of defendant's child support obligation since the other issues he raises in his brief are beyond the scope of our remittitur ( see, West v. West, 115 A.D.2d 601, 602).
The primary argument advanced by defendant is that Supreme Court should have deducted from his gross income the $5,200 annual court-ordered maintenance payment he must make to plaintiff for five years. The Domestic Relations Law does provide that maintenance paid pursuant to an existing court order to a spouse who is a party to the action can be deducted from the payor spouse's gross income if the order provides for a specific adjustment in the amount of child support upon the termination of the maintenance payments (Domestic Relations Law § 240 [1-b] [b] [5] [vii] [C]). Supreme Court's order does not contain such a provision; however, it has been noted that such a provision should be included in a permanent order of maintenance and support ( see, Polychronopoulos v. Polychronopoulos, 226 A.D.2d 354, 356; Lenigan v. Lenigan, 159 A.D.2d 108, 111). Because we have the same power and discretion as does Supreme Court ( see, Brady v Ottaway Newspapers, 63 N.Y.2d 1031), we shall modify Supreme Court's order to include the necessary statutory language, thereby reducing defendant's weekly child support obligation to $51.
This sum was calculated as follows:
Plaintiff Defendant
Annual income $11,700 Annual income $23,450 less FICA 427 less FICA 1,794 less maintenance 5,200
Adjusted gross Adjusted gross income $11,273 income $16,456
Combined parental income: $27,729 Total child support obligation ($27,729 X 29%) 8,041 Defendant's pro rated share ($8,041 X 59%) 4,744 Defendant's weekly obligation ($4,744 ÷ 52 = $91 — $40) 51
The ancillary issues raised by defendant do not require extended discussion. His child support obligation is retroactive to December 1, 1993, the date the summons and complaint containing a request for child support was filed ( see, Faber v Faber, 206 A.D.2d 644, 646-647). Supreme Court did not err in not deducting the nonreimbursable carrying charges from defendant's gross income inasmuch as the proof shows that he has not paid such charges. Lastly, defendant's contention that the award of child support is confiscatory is not persuasive.
Crew III, J.P., Yesawich Jr., Spain and Carpinello, JJ., concur. "Ordered that the order is modified, on the law, without costs, by amending the second decretal paragraph thereof to read as follows: Ordered that defendant shall pay child support to plaintiff in the amount of $91 per week, less $40 per week credited from November 1, 1995, which is the cost of health care coverage defendant provides for the children, for a net payment of $51 per week, and said support shall be retroactive to December 1, 1993, and upon termination of the maintenance payments to plaintiff, defendant's child support obligation shall increase to $120 per week less $40, for a net weekly payment of $80. and, as so modified, affirmed.
This sum was calculated as follows:
Plaintiff Defendant
Annual income $6,500 Annual income $23,450 less FICA 427 less FICA 1,794
Adjusted gross Adjusted gross income $6,073 income $21,656
Combined parental income: $27,729 Total child support obligation ($27,729 X 29%) 8,041 Defendant's pro rated share ($8,041 X 78%) 6,272 Defendant's weekly obligation ($6,272 ÷ 52 = $120 — $40) 80