Opinion
F-1862-08, FF#28077.
Decided October 23, 2009.
Michael P. Friedman, Esq., FOR PETITIONER.
Michael J. Biscone, Esq., FOR RESPONDENT.
DECISION
The matters under review are the father's objections to the Support Magistrate's decision and order of July 14, 2009, and the amended order issued on July 24, 2009.
These parents separated in March, 2008, and the mother filed for child support soon thereafter. The mother worked outside the home until the birth of their twins on December 1, 2006. By mutual agreement, she stayed home with the children until September, 2008, while the father worked two jobs. The children now age 2 1/2 are in day care and the mother has returned to work.
The final order of support under review obligates the father to pay $1,982 monthly for child support plus $587.86 bi-weekly for child care expenses. The Support Magistrate based her award of child support on the father's 2008 W-2 income of $121,700, which he earned from two jobs, and the mother's 2009 income of $52,000. Combined Adjusted Gross Income (AGI) for CSSA purposes was established to be $160,412. The father's child support obligation was based on 25% of the first $80,000, as required by law, plus 25% of the first $21,600 of the amount over the $80,000 cap, which was a discretionary determination.
The father's proportional share of the child support was determined to be 70%. Basic child support was determined to be $1,167 per month (based on up-to-the-cap income) plus $315 per month (based on over-the-cap income of $21,600) for a total amount of $1,482. However, due to a typographical error, the Findings of Fact and order state that the total child support obligation was to be $1,982 per month instead of $1,482. The father was also ordered to pay $1,274 per month in child care expenses. His total child support obligation was found to be $3,613 per month but the correct computational amount would be $2,756.
The father's first objection is that child support should not be based on his 2008 income when he worked two jobs. The father now works one job and goes to school, which is a change from 2008 when he was working the two full time jobs. The Support Magistrate declined to determine the father's child support based on his current income from one job. The Magistrate based her decision on the father's income from the two full time jobs that he worked in 2008 which each involved about 55 hours per week. In one job, he worked as an EMT and in the other as an insurance agent. In making this determination, the Magistrate found directly that the father's explanation that he left the insurance agency job for medical reasons was not supported by medical evidence. In making this determination, the Magistrate also determined indirectly that the father could be required to work two full time jobs. The decision does not set forth the father's income from his single job as an EMT but his uncontroverted testimony established it to be $58,707, meaning that he earned a similar amount from the job he left at the insurance agency.
The father objects to the imputation of the income that he previously earned from the second job because he is now working only one full time job. His reasons for leaving that other job, which have not been disputed, are that he was overwhelmed by working two jobs. It was not disputed that, at the time he left the second job, he was seeing a doctor for chest pains, a hematologist and a third doctor for stress and anxiety.
This Court finds no provision in the Child Support Standards Act that supports a conclusion that a person earning $60,000 per year in a full time job is willfully underemployed because he could possibly work full time at a second job earning the same amount. When a parent is underemployed, a court may properly impute income based upon the parent's earning capacity (Zwick v. Kulhan, 226 AD2d 734). A parent is underemployed when he "intentionally [reduces] his or her earnings for the purposes of mitigating or avoiding child support" ( Kelly v. Bovee, 9 AD3d 641, 642). This Court finds no reported decision that holds that a person who quits a second full time job of equal or lesser pay than his first full time job is willfully underemployed. A person can also be underemployed when he fails to diligently search for work but that issue is not an aspect of this case.
FCA § 413(1)(b)(5)(v) defines income to include "an amount imputed based upon the parent's former resources or income if the court determines that a parent has reduced resources or income in order to reduce or avoid the parent's obligation for child support." For several reasons, the Court finds that this section is not applicable to the facts of this case.
Here, the parents lived on both of their incomes prior to the birth of the twins in December, 2006. To make up for the mother's lost income when she stayed home to care for the babies, the father worked two full time jobs from around that time until March, 2009. This was not meant to be a permanent arrangement.
The child support, in this case, should only be based on the father's income from his current full time job. Voluntarily leaving a second full time job does not establish underemployment or show a purposefulness to reduce income so as to reduce a child support obligation. A parent who chooses to work 48 to 54 hours per week instead of 110 hours per week is neither underemployed nor evading a child support obligation. The situation in this case is in no way analogous to a person who leaves a job as, say, a surgeon that pays $600,000 per year to become an EMT that pays $60,000 per year.
It is the public policy of the State and this nation that forty hours is a full work week ( 29 USC § 207 [FLSA]; 29 CFR 778.100; Labor law § 160). Contrary to popular belief, the overtime pay laws were not primarily meant to compensate for extra work beyond a full work week but to open up more jobs by creating an economic disincentive for employers to employ workers more than forty hours per week (www.history.com/content/laborday/labor-history/the-eight-hour-work-day).
The limits of the Court's common law interpretative boundaries on the intentional avoidance issue can be illustrated by an example. Say there are two police officers who each earn a base salary of $60,000 per year and each could earn an extra $20,000 per year by working elective overtime. Both officers are non-custodial parents and are facing child support determinations. The first officer chooses to work the extra overtime and his child support obligation is based on $80,000. The second officer chooses to work only forty hours per week and declines all overtime for no reason other than it is his personal preference. Could a court determine that $20,000 of income should be imputed to the second officer because he has declined to take available overtime? Perhaps, but only if the mechanical application of the CSSA fell short in establishing an amount which met the child's needs. There is no provision in the CSSA that specifically directs a court to impute income to a parent who declines available overtime if employed full time and this Court declines to invent such a provision. The CSSA also contains no provision that requires a person to work the maximum number of hours available to him within the limits of his endurance and the Court declines to invent such a rule. If such a rule was found in the CSSA, it would seriously test the parens patriae authority of the State when it legislates in the area of child welfare. In any case, creating a new rule of law which holds that a parent's child support obligation can be based on income from a second full time job he no longer has or from a second job that he could secure finds no support in the text of the law or decisional holdings. This Court holds that there is no reasonable interpretation of the CSSA that supports a conclusion that not working a second job is a willful underemployment. If such was the case, a court could then be routinely required to impute income from a full time hypothetical job to a mother who decides not to work outside the home to care for her children and had done so throughout the relationship or marriage.
What a court can do in its common law duty to fill in the interstices of the positive law and what a legislature can do in exercising its positive law making function are quite different. Under the circumstances as presented in this case, the Court is holding that a child support obligation can not be based on the parent's ability to work a second full time job. This objection is granted.
This case can be distinguished from S.P. v. F.O. (20 Misc 3d 1104A). In that case, the father had been working for 10 years at the second job that paid $20,000 per year, about 40% of his full time job. The father told the mother that he would resume working a second job after child support had been established. The court found that although the father quit the part time job by mutual agreement, he told the mother that he was not going back to a second job until after his child support was determined. The court imputed 50% of the father's income from his previous part time job.
The father's second objection is that the mother should be obligated to pay for a portion of the health insurance expenses for the children. A review of the record shows no evidence was produced to establish the cost of the health insurance nor of the amount directly related to the children's coverage nor expenses for any uncovered medical service. However, the father is correct. The mother is responsible for a proportional share of the health insurance premiums for the children's coverage and of their uncovered medical expenses. When that income is properly determined, the mother's proportional share for health insurance costs and uncovered medical expenses will be added. This objection is granted.
The father's third objection is that he should not have been obligated to pay part of the child care expenses because at some point during the pendency of this petition, the mother offered to assume all responsibility for child care expenses. FCA § 413 requires that child care expenses must be prorated. The father alleges that at some point during the pendency of these matters, the mother offered to pay all of the child care expenses. Any offers for the mother to pay those expenses are not part of the record of the hearing and are, therefore, not relevant to the determination in this case. As a general rule, offers made in settlement negotiations are not admissible as a party admission (CPLR 4547). Also, the father points to a petition pending before this Court which asks that he be allowed to provide day care for the children. Regardless of the outcome of that petition, the father is responsible for 53% of any day care cost and the mother shall be responsible for 47% (see determination below). This objection is denied.
The father's fourth objection is that counsel fees should not have been awarded to the mother. The Support Magistrate granted the mother 50% of the counsel fees of $4,207.50 based on the "parties' financial circumstances, the nature and extent of the services provided, the reasonableness of counsel's performance, the nature of the issues, and the results achieved ( McCann v. Gutterl, 100 AD2d 577)." The Magistrate also stated that "The issues were fairly straightforward but there was no need for two days of trial." It was within the discretion of the Support Magistrate to make these determinations. However, based on this Court's new findings, it would be improvident to award counsel fees. This objection is granted. The award of counsel fees is vacated.
Based on the above, the father's objections to the Support Magistrate's Findings of Fact and Order entered on July 14, 2009, are granted as to the miscalculation of child support, the determination of his income, the mother's obligation for uncovered medical expenses including health insurance, and counsel fees. The objections are denied as to the father's obligation for child care expenses, for which each parent is responsible proportionally.
Child support shall be determined based on the evidence in the record. For child support purposes, the father's income in $54,216 ($58,707 less $3,640 [FICA] less $851 [Medicare]). The mother's income for child support purposes is $48,022 ($52,000 less $3,224 [FICA] less $754 [Medicare]). Combined parental income is $102,238. The father's proportional share is 53% and the mother's is 47%. Up-to-the-cap child support is $20,000 ($80,000 x 25%). The father's share of that is $10,600 per year or $408 bi-weekly.
The amount of combined parental income over-the-cap is $22,238. The Court finds that it is justified to go over the cap up to the full amount of combined parental income as the incomes of the parents are similar and to not utilize the full amount of the parental income would disadvantage the children as they would not be supported by both parents in a proportional manner. In addition, the Legislature has spoken to this issue by increasing the cap as of January 31, 2010, to $130,000.
Child support over-the-cap is $5,560 per year. The father's proportional share of that is $2,947 per year or $113 per week. The father's total child support obligation is $521 biweekly.
In addition, the parents are responsible for the child care expenses and uncovered medical expenses for the children proportionally, with the father being responsible for 53% of these expenses and the mother being responsible for 47%.
Any objections not discussed are denied as being rendered moot by this decision.
This constitutes the decision and order of the Court.
Papers considered:
Objections, filed by Michael J. Biscone, Esq. o/b/o the father Rebuttal to written objections, filed by Nicole Redmond, Esq., o/b/o the mother
Cases considered:
Dowd v. Dowd, 58 AD3d 1057 (3d Dept, 2009) Carl v. Carl, 58 AD3d 1036 (3d Dept, 2009) Maharaj-Ellis v. Loroche, 54 AD3d 677 (2d Dept, 2008) Bean v. Bean, 53 AD3d 718 (3d Dept, 2008) Burtchaell v. Burtchaell, 42 AD3d 783 (3d Dept, 2007) Yarinsky v. Yarinsky, 36 AD3d 1135 (3d Dept, 2007) Moffre v. Moffre, 29 AD3d 1149 (3d Dept, 2006) Rubley v. Longworth, 35 AD3d 1129 (3d Dept, 2006) Coon v. Coon, 29 Ad3d 1106 (3d Dept, 2006) Baffi v. Baffi, 24 AD3d 578 (2d Dept, 2005) Bianchi v. Breakell, 23 AD3d 947 (3d Dept, 2005)
Monahan v. Hartka, 17 AD3d 758 (3d Dept, 2005) Kelly v. Bovee, 9 AD3d 641 (3d Dept, 2004) Spencer v. Spencer, 298 AD2d 680 (3d Dept, 2002) Zwick v. Kulhan, 226 AD2d 734 (2d Dept, 1996) Darling v. Darling, 220 AD2d 858 (3d Dept, 1995) D.L.M. v. H.S.L., 22 Misc 3d 1136A (2009) S.P. v. F.O., 20 Misc. 3d 1104A (2008) Donna E.F. v. Anthony S.F., 2007 N.Y. Misc LEXIS 6383 (2007) Blasdell v. Steiner, 14 AD3d 898 (3d Dept, 2005) Kaye v. Kaye, 6 Misc. 3d 1005A (2005) Monroe County Support Collection Unit v. Wills, 21 AD3d 1331 (4th Dept, 2005) Stearns v. Stearns, 11 AD3d 746 (3d Dept, 2004) Gabriel v. DiBiari, 12 Ad3d 510 (2d Dept, 2004)