Opinion
2013-12-18
In the Matter of Ghyslaine DE SOUZA, respondent, v. Nicolas NIANDUILLET, appellant.
Coffinas & Lusthaus, P.C., Brooklyn, N.Y. (Maria Coffinas of counsel), for appellant. Scott & Liburd, New York, N.Y. (Marjorie A. Liburd of counsel), for respondent.
Coffinas & Lusthaus, P.C., Brooklyn, N.Y. (Maria Coffinas of counsel), for appellant.Scott & Liburd, New York, N.Y. (Marjorie A. Liburd of counsel), for respondent.
, J.P., PLUMMER E. LOTT, LEONARD B. AUSTIN, and SHERI S. ROMAN, JJ.
In a proceeding pursuant to Family Court Act article 5 to establish paternity and for an award of child support, Nicolas Nianduillet appeals, as limited by his brief, from so much of an order of the Family Court, Kings County (Shamahs, S.M.), dated September 26, 2012, as, upon a finding of paternity in an order of filiation of the same court dated September 28, 2011, and after review of his objections to a prior order of support of the same court dated July 10, 2012, made after a hearing, directed him to pay child support in the sum of $1,074 semimonthly and retroactive child support in the sum of $195 semimonthly.
ORDERED that the order dated September 26, 2012, is affirmed insofar as appealed from, with costs.
The Child Support Standards Act (Domestic Relations Law § 240[1–b] ) “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 Freeman v. Freeman, 71 A.D.3d 1143, 1144, 898 N.Y.S.2d 65; see Holterman v. Holterman, 3 N.Y.3d 1, 11, 781 N.Y.S.2d 458, 814 N.E.2d 765; Matter of Cassano v. Cassano, 85 N.Y.2d 649, 653, 628 N.Y.S.2d 10, 651 N.E.2d 878; Matter of Byrne v. Byrne, 46 A.D.3d 812, 814, 848 N.Y.S.2d 319). Where combined parental income exceeds the statutory cap—in this case, $136,000 ( seeSocial Services Law § 111–i[2][b] )—“the court, in fixing the basic child support obligation on income over the ceiling, has the discretion to apply the factors set forth in Family Court Act § 413(f), or to apply the statutory percentages, or to apply both” ( Matter of Freeman v. Freeman, 71 A.D.3d at 1144, 898 N.Y.S.2d 65; see Matter of Lynn v. Kroenung, 97 A.D.3d 822, 823, 949 N.Y.S.2d 144). However, there must be “some record articulation of the reasons for the court's choice ... to facilitate ... review” ( Matter of Cassano v. Cassano, 85 N.Y.2d at 655, 628 N.Y.S.2d 10, 651 N.E.2d 878; Finke v. Finke, 15 A.D.3d 615, 618, 790 N.Y.S.2d 224). The court's decision “ ‘should reflect a careful consideration of the stated basis for its exercise of discretion, the parties' circumstances, and its reasoning why there [should or] should not be a departure from the prescribed percentage’ ” (McCoy v. McCoy, 107 A.D.3d 857, 858, 967 N.Y.S.2d 137, quoting Wagner v. Dunetz, 299 A.D.2d 347, 350–351, 749 N.Y.S.2d 545; see Matter of Cassano v. Cassano, 85 N.Y.2d at 655, 628 N.Y.S.2d 10, 651 N.E.2d 878). “In addition to providing a record articulation for deviating or not deviating from the statutory formula, a court must relate that record articulation to the statutory factors” ( Matter of Gluckman v. Qua, 253 A.D.2d 267, 270–271, 687 N.Y.S.2d 460; see Moschetti v. Moschetti, 277 A.D.2d 838, 840, 716 N.Y.S.2d 802).
Here, while the support magistrate listed the statutory factors she considered, she did not expressly relate those factors to the record. However, the support magistrate's decision as a whole reflects that she thoroughly and carefully considered the parties' circumstances and that her determination to apply the statutory percentage to the combined parental income over $136,000 was not an improvident exercise of discretion ( see Bellinger v. Bellinger, 46 A.D.3d 1200, 1202, 847 N.Y.S.2d 783; Smith v. Smith, 1 A.D.3d 870, 872, 769 N.Y.S.2d 306). Contrary to the father's contention, the support magistrate providently exercised her discretion in not deviating from the statutory formula with respect to the combined parental income over $136,000 although the father supports four children in addition to the subject child. Regardless of whether combined parental income is more or less than the statutory cap, “the court may, in its discretion, disregard the statutory formula where it would result in a child support obligation which is unjust and inappropriate” ( Matter of Byrne v. Byrne, 46 A.D.3d at 814, 848 N.Y.S.2d 319; seeFamily Ct. Act § 413[f], [g]; Matter of Cassano v. Cassano, 85 N.Y.2d at 654, 628 N.Y.S.2d 10, 651 N.E.2d 878). Here, however, the father failed to demonstrate what resources were available to support his four other children, and, thus, failed to demonstrate that “the resources available to support such children are less than the resources available to support the [child who is] subject to the instant action” (Family Ct. Act § 413[f][8]; see Matter of Hudgins v. Blair, 74 A.D.3d 1199, 1201, 903 N.Y.S.2d 535; Matter of North Guilford County v. Campbell, 305 A.D.2d 686, 687, 762 N.Y.S.2d 87; Matter of Calkins v. Calkins, 309 A.D.2d 991, 994, 765 N.Y.S.2d 714).