Opinion
2001-01720
Submitted March 15, 2002.
August 26, 2002.
In a support proceeding pursuant to Family Court Act article 4, the father appeals, as limited by his brief, from so much of an order of the Family Court, Suffolk County (Trainor, J.), entered January 24, 2001, as, upon reviewing the mother's objections to an order of the same court (Buse, H.E.), dated October 26, 2000, inter alia, directed him to pay child support in the amount of $246 per week, and the mother cross-appeals from stated portions of the same order which, among other things, directed the father to pay only $246 in child support per week, in effect, denied her objections to so much of the Hearing Examiner's order as directed the father to pay counsel fees of only $2,500, directed that the counsel fees be paid as "added arrears" through the Suffolk County Support Collection Unit, and failed to direct the father to obtain health and life insurance for the child's benefit.
Karen G. Silverman, Huntington, N.Y., for appellant-respondent.
Del Vecchio Recine, LLP, Garden City, N.Y. (Nicholas J. Ferrar of counsel), for respondent-appellant.
Before: ANITA R. FLORIO, J.P., SONDRA MILLER, ROBERT W. SCHMIDT, BARRY A. COZIER, JJ.
ORDERED that the order is modified, on the law and as a matter of discretion in the interest of justice, by (1) deleting the provision thereof directing the father to pay $246 per week in child support and substituting therefor a provision directing him to pay $183.08 per week in child support, (2) deleting the provision thereof directing the father to pay counsel fees as "added arrears" through the Suffolk County Support Collection Unit and substituting therefor a provision directing him to pay $2,500 in counsel fees to the mother's counsel, and (3) adding thereto a provision directing the father to obtain life insurance and health insurance for the child's benefit in an amount to be determined by the Family Court; as so modified, the order is affirmed insofar as appealed and cross-appealed from, without costs or disbursements, and the father's time to pay the counsel fees is extended until 30 days after service upon him of a copy of this decision and order; and it is further,
ORDERED that the matter is remitted to the Family Court, Suffolk County, to determine the amount of life insurance and health insurance the father is to obtain for the child's benefit; and it is further,
ORDERED that the father's time to obtain the necessary life insurance and health insurance is extended until 30 days after the Family Court makes its determinations.
The Family Court made several errors in computing the father's child support obligation. It failed to deduct Medicare taxes from the father's wages in computing his gross income (see 26 U.S.C. § 3101; see also Militana v. Militana, 280 A.D.2d 529, 530; Matter of Mitchell v. Mitchell, 264 A.D.2d 535, 538-539).
The Family Court, moreover, improperly applied the Child Support Standards Act (hereinafter the CSSA) guidelines to the first $80,000 of the father's income, rather than the first $80,000 of the combined parental income (see Family Ct Act § 413[b]; see also Matter of Cassano v. Cassano, 85 N.Y.2d 649). Accordingly, the proper amount of weekly child support is $183.08, after deducting Medicare taxes from the father's wages and application of the CSSA guidelines to the first $80,000 of the combined parental income.
Under the circumstances of this case, the Family Court should have required the father to provide life and health insurance for the child (see Family Court Act §§ 416 [a]; [c]).
Contrary to the father's contention, the Family Court properly refused to deduct unreimbursed business expenses in computing his income for CSSA purposes, as he failed to introduce the relevant tax return into evidence to support his claim regarding such expenses. Further, there was no testimony adduced at the hearing supporting such expenses.
In computing the pro rata shares of child support, the Family Court properly utilized the mother's 1999 adjusted gross income, since her decision to stop working one day per week rather than allow the father to care for the child or search for alternative commercial day care was voluntary (see Matter of Brefka v. Dobies, 271 A.D.2d 876). Additionally, under the circumstances of this case, the Family Court providently exercised its discretion in declining to apply the CSSA guidelines to the combined parental income above $80,000 and properly gave its specific reasons for doing so (see Matter of Cassano v. Cassano, supra).
Further, the Family Court providently exercised its discretion in awarding $2,500 in counsel fees (see Family Ct Act § 438[a]; Matter of Israel v. Israel, 273 A.D.2d 385). However, it was improper for the Family Court to order these fees to be paid as "added arrears" though the Suffolk County Support Collection Unit (see Matter of B.M. v. Z.S., 174 Misc.2d 205; see also Anostario v. Anostario, 249 A.D.2d 612; Sitarek v. Sitarek, 179 A.D.2d 1065).
The mother's remaining contention is without merit.
FLORIO, J.P., S. MILLER, SCHMIDT and COZIER, JJ., concur.