WHEN REDUCED TO ITS most basic terms the Child Support
Standards Act is not nearly as complicated as it first appears. You start with
numbers, add the facts and multiply the calculators. However, if the "devil is
in the details" then even the enthusiasts who applauded the CSSA in its
heavenly, newborn days have considerable studying to do of the newest round of
details. One of the initial concerns voiced about the CSSA was its application
in a joint custody situation. The statute provides that unless the court finds
that the non- custodial pro-rata share of the basic child support obligation
is unjust or inappropriate, based upon consideration of the factors in
Domestic Relations Law s240(1-b)(f)(1-10), the court must order the
non-custodial parent to pay his or her pro rata share of the basic child
support obligation based upon the application of the child support percentages
to the combined parental income. [FN1] We concluded that where joint or shared
custody is awarded, the court should award child support, based upon the
factors in DRL s240(1-b)(f)(1- 10), taking into account the actual expenses of
each parent in making his/her home available to the child on a full time
basis, as is usual in joint custody situations. Certainly not a novel approach
but a very workable one.
Supreme Court Decision
The sense and sensibility of this approach was adopted by the
Supreme Court, New York County, in Bast v. Rossoff. [FN2] The parties agreed
upon joint custodial decision-making and had a "shared time allocation." The
father had his daughter with him from Wednesday evening until Sunday evening
during alternate weeks and from Wednesday evening until Thursday morning
during the other week. The Supreme Court concluded that the application of the
CSSA percentages was inappropriate in cases of shared physical custody and
that the percentages made no sense if adjusted for extensive visitation.
It held that where there is extensive time-sharing the court
must look at the totality of the circumstances in both homes rather than rely
on the percentages and concluded that while the CSSA applied to shared
custody, the basic support percentages should not be used in any shared
custody case. The father earned $75,876 and the mother earned $83,118. The
father earned 48 percent of the total income. The court held that in a shared
custody case it is reasonable and appropriate to consider the expenses of the
child incurred by each of the parties as one of many factors referred to in
DRL s240(1-b)(f)(1-10) in order to find a number that is just and appropriate.
Based on the totality of the circumstances the court fixed the child support
to be paid by the father to the mother at $750 per month. The father was also
directed to bear 48 percent of the cost of the child care and 48 percent of
the private school and health care costs for the child.
Direct, to the point, logical. Not, however, to the Third
Department. In a decision which predated Bast, the Third Department initially
held that application of the formula is appropriate in joint custody
situations. In Holmes v. Holmes [FN3] petitioner had physical custody of the
parties' two children approximately 60 percent of the time and respondent had
physical custody of the children approximately 40 percent of the time. The
Family Court directed the former husband to pay child support for his two
children. Respondent argued that the CSSA should not apply where the parties
shared physical custody, and if it did apply, then the Examiner's application
of the formula was unjust.
The Appellate Division reversed and remitted the matter for a
new child support determination. A majority of the court found that the
parties had implicitly created a joint custody situation [FN4] and declined to
hold that the CSSA had no application to the parties' joint custody
arrangement. The court classified the parties as "simultaneously custodial and
noncustodial parents." It went on to hold, however, that the hearing
examiner's application of the child support percentage to that portion of
combined parental income exceeding $80,000 was an improvident exercise of
discretion where it failed to express any findings of the child's actual
needs.
A two-judge minority had a different spin on it. They declared
that the CSSA never contemplated that type of shared custody, where the
parties are never simultaneously custodial and noncustodial parents, and
warned that "the practical difficulties inherent in having the obligation to
pay child support, imposed by the CSSA on the noncustodial parent, change back
and forth between the parties depending upon which of them has physical
custody of the children, would make application of the statute more than
unwieldy." The partial dissenters saw the parent with custody the bulk of the
time as the custodial parent while the period when the other parent has
physical custody of the children should be considered "extended visitation,"
justifying a deviation from the support formula pursuant to FCA
413(1)(f)(9)(ii) if it was shown that the custodial parent's expenses were
substantially reduced as a result thereof. [FN5]
Calculation on Remittal
On remittal the hearing examiner calculated the parties'
combined parental income, based on incomes of $42,687 and $53,300
respectively, and computed the parties' proportional shares. The hearing
examiner applied the child support percentage and arrived at the parties'
respective support obligations for the first $80,000 of income. The hearing
examiner then multiplied the parties' respective support responsibilities by
40 percent and 60 percent, representing the percentage of time that each party
was, respectively, the noncustodial parent, and "netted out" those amounts to
arrive at the amount of support to be paid by respondent to petitioner. The
hearing examiner followed the same methodology in computing the parties'
respective obligations for their remaining income over $80,000. After adding
the two "net" figures, the hearing examiner arrived at a total support
obligation of $65.75 payable weekly by respondent to petitioner. Family Court
adopted the hearing examiner's determination and reasoning. The Appellate
Division affirmed, finding that this was the correct methodology. [FN6]
In Simmons v. Hyland [FN7], decided this month, the Third
Department retreated from its position in Holmes. Although it refused to
overrule Holmes it stated that it was "unwilling to extend its reach beyond
cases presenting sharply similar facts." In Simmons the Family Court granted
the parties joint legal custody of their child and provided that respondent
have "custodial time" with the child at all times other than specified periods
when petitioner was to have "custodial time" with her. This consisted of three
extended weekends a month, from Thursday afternoon to Sunday afternoon, two
weekdays in the "off" week and a full week during the months of July and
August of each year. During 1995 the child was with respondent 69 percent of
the time and with petitioner 31 percent of the time.
Both parties sought support in the Family Court. The hearing
examiner determined that the custodial arrangement created a "split custody
situation" and made a net support award in the manner prescribed in Holmes,
which required respondent to pay $34 per week to or on behalf of petitioner.
The Hearing Examiner took into account the petitioners' income of $8,164 and
respondent's income of $29,600 and the fact that petitioner was close to the
poverty level. The respondent was required to bear the full cost of health
insurance and uncovered medical expenses and substantially all of the child
care costs incurred by both parties.
An unsympathetic Family Court rejected respondent's objections
and an appeal was taken. Respondent reasoned that as "de facto custodian" he
should not be required to pay child support to petitioner. The Appellate
Division agreed with him. It noted that in Holmes "a bare majority" of the
court decided to extend the "split custody" analysis of Matter of Kerr v.
Bell, [FN8] to a "time-sharing" custody arrangement where one parent had
custody of the child or children for part of the time and the other parent had
custody of the same child or children for part of the time. The Court noted
that in Holmes there was no great disparity in the parties' respective incomes
or custodial time and the application of the CSSA resulted in a net support
award in favor of the parent who had custody for the greater part of the time
(although in a lesser amount than if she had been treated as the custodial
parent). [FN9]
Split Custody Theory
The Third Department stated it was taking no position on the
propriety of applying the split custody methodology of Holmes and held that
the same approach was unwarranted in Simmons. It found that the parties'
choice to apply the label "custodial time" did not alter the essential terms
of the order, which it viewed as embodying a grant of primary physical custody
to respondent, subject to liberal structured visitation to petitioner. It
challenged the wisdom of applying the split custody formula where, as here,
the parties' incomes and the division of "custody" were so disparate as to
bring about a child support award in favor of the parent enjoying custody for
the far smaller time period.
Moreover, except for a $10 child care expense, the record was
devoid of evidence concerning the actual expenses petitioner incurred in
connection with her visitation or the concomitant diminution in respondent's
expenses, if any. Therefore, the court could not discount respondent's claim
that a portion of his child support payments were being used by petitioner as
supplementary income.
The court concluded that this case brought to "full
realization" the concerns of the partial dissenters in Holmes, and that not
only is the split custody approach unwieldy in a timeshare case, but that it
also has the potential for encouraging a parent to keep a stopwatch on
visitation in order to increase his or her split custody proportion, thereby
providing a basis for annual applications for modification of the child
support award.
It held that as the de facto custodial parent, the respondent
may not be compelled to pay child support to petitioner and concluded that
Family Court correctly established petitioner's child support obligation at
the minimum level of $25 per month. [FN10] It noted that the application of
one or more of the factors set forth in FCA 413(1)(f)(1) through (9) would not
permit a lower award and held that ordinary expenses incurred during extended
visitation, such as food, housing and clothing, do not qualify for treatment
as an extraordinary circumstance under FCA 413(1)(f)(9)(ii). [FN11]
In an unusual determination, the court concluded that
respondent could not recoup the sums he paid to petitioner under the order it
had reversed because "so much of the order as eliminated respondent's support
obligation was analogous to a downward modification of the outstanding support
order."
The order compelling petitioner to pay support was made
retroactive to the date of respondent's cross-petition for support and it
directed that to the extent that petitioner's income continued to be less than
or equal to the poverty income guidelines amount for a single person as
reported by the Department of Health and Human Resources, her unpaid child
support arrears could not exceed $500. [FN12]
FN1. DRL s240(1-b)(f)(10); See also FCA s413(1)(f)(1-10).
FN2. ___ Misc2d ___, 635 NYS2d 453 (S. Ct., New York County,
1995).
FN3. Holmes v. Holmes, 184 AD2d 185 (3d Dept., 1992).
FN4. Id.
FN5. Holmes v. Holmes, supra, at 189-190.
FN6. ___ AD2d ___, 655 NYS2d 454 (3d Dept, 1997).
FN7. ___ AD2d ___, ___ NYS2d ___, 1997 WL 675009, (3d Dept.,
1997).
FN8. 178 AD2d 1 (3d Dept., 1992) (where four children resided
with one parent and a fifth resided with the other).
FN9. Matter of Holmes v. Holmes, ___ AD2d ___, 655 NYS2d 454.
FN10. Citing FCA 413(1)(g). But see, Matter of Rose v. Moody,
83 NY2d 65
FN11. Citing Matter of Pandozy v. Gaudette, 192 AD2d 779, 780.
FN12. Citing FCA s413[1][g].
Joel R. Brandes and Carole L. Weidman have law offices in New
York City and Garden City. They co-authored, with the late Doris Jonas Freed
and Henry H. Foster, Law and the Family New York, and co-authored Law and the
Family New York Forms (both, Lawyers Cooperative Publishing).
11/25/97 NYLJ 3, (col. 1)
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