Matter of Mitchell v. Mitchell , 21 N.Y.S.3d 438 ( 2015 )

State of New York
Supreme Court, Appellate Division
Third Judicial Department
Decided and Entered: December 3, 2015 520519
________________________________
In the Matter of THOMAS S.
MITCHELL,
Appellant,
v MEMORANDUM AND ORDER
JEANETTE M. MITCHELL,
Respondent.
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Calendar Date: October 16, 2015
Before: McCarthy, J.P., Rose, Lynch and Devine, JJ.
__________
Levene Gouldin & Thompson, LLP, Vestal (Margaret J. Fowler
of counsel), for appellant.
Garufi Law, PC, Binghamton (Carman M. Garufi of counsel),
for respondent.
__________
Lynch, J.
Appeal from an order of the Family Court of Broome County
(Pines, J.), entered May 12, 2014, which, in a proceeding
pursuant to Family Ct Act article 4, granted respondent's
objections to an order of a Support Magistrate.
Petitioner (hereinafter the father) and respondent
(hereinafter the mother) are the divorced parents of one child
(born in 2002). In August 2005, the parties entered into a
separation agreement that resolved, among other things, custody
and child support. The agreement was incorporated but not merged
into the December 2005 judgment of divorce. Pursuant to the
terms of the agreement, the parties shared legal and physical
custody and virtually equal parenting time. In May 2007, the
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parties agreed to an order that, insofar as is relevant to this
proceeding, provided that the child would be with the father, who
works for the school district, during scheduled school holidays,
provided that the mother did not also have the day off. In
September 2013, the father commenced this proceeding seeking a
modification of child support. Relevant here, he claimed that,
because his parenting time had increased, he had become the
child's primary physical custodian. Consequently, he argued that
the mother should be directed to pay child support to him
pursuant to the Child Support Standards Act (see Family Ct Act
§ 413 [hereinafter CSSA]) or that his child support obligation
should be reduced based on the expenses resulting from the
increased parenting time. Following a hearing, a Support
Magistrate partially granted the petition and reduced the
father's support obligation as calculated under the CSSA from
$186 to $92 a week. Family Court thereafter granted the mother's
objections to the Support Magistrate's order, finding that the
record did not support a deviation from the CSSA. The father
appeals and we affirm.
Initially, we reject the father's argument that Family
Court should have determined that he was the child's custodial
parent. Generally, the custodial parent for purposes of child
support is the parent who has physical custody of a child for the
majority of the time "based upon the reality of the situation"
(Riemersma v Riemersma, 84 AD3d 1474, 1476 [2011] [internal
quotation marks and citation omitted]). If the parenting time is
shared equally, then the parent with greater income is deemed to
be the noncustodial parent for purposes of calculating child
support (see Smith v Smith, 97 AD3d 923, 924 [2012]).
Here, no party disputes the Support Magistrate's conclusion
that, during the school year, the child spends an equal number of
overnights at each party's home and, during the summer months,
the child is with the mother eight nights and the father six
nights. Consequently, Family Court determined that because the
parents' have "close to equally shared physical custody," the
father, as the more monied spouse, was the noncustodial parent.
The father contends that he has physical custody of the child a
majority of the time because, pursuant to the 2007 order, the
child was with him eight full days, six nights and two half days
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during any 14-day period in the summer months, and, therefore, he
should be deemed the custodial parent.1 The flaw in this
argument is that "shared" custody need not be "equal" (Smith v
Smith, 97 AD3d at 924). Here, with the exception of the days
during the summer weeks when the mother was unavailable and the
father was available to exercise parenting time, the custodial
schedule was unchanged, and we decline to accord greater weight
to the custodial days as compared to the overnight custodial
periods (see Matter of Somerville v Somerville, 5 AD3d 878, 880
[2004]). Based on the "reality of the situation" (Riemersma v
Riemersma, 84 AD3d at 1476 [internal quotation marks and citation
omitted]), as demonstrated by the record, we discern no error in
Family Court's determination that the parties shared "close to
equally shared physical custody of the child."
Citing "significant expenses during his extensive
visitation" with the child, the father also argues that strict
application of the CSSA leads to an unjust or inappropriate
result. We disagree. First, Family Court properly granted the
mother's objections to the Support Magistrate's determination to
deviate from the presumptive amount of child support because the
Support Magistrate did not identify the factors she relied upon
in making such determination (see Family Ct Act § 413 [1] [g];
Matter of Ryan v Ryan, 110 AD3d 1176, 1180 [2013]).2 Further,
1
The order also permits the mother to exercise parenting
time during any two weeks during the summer. The record is
silent with regard to this exception to the father's parenting
time.
2
The Support Magistrate determined that there was no basis
in the record to deviate from strict application of the CSSA
before subtracting the mother's basic support obligation plus a
$5 weekly health insurance contribution from the father's basic
support obligation. To do so was in error for, in making a child
support award, the court "must then order the noncustodial parent
to pay his or her pro rata share of the basic child support
obligation, unless it finds that amount to be unjust or
inappropriate" (Riemersma v Riemersma, 84 AD3d at 1476 [internal
quotation marks and citations omitted]).
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our independent review of the record does not reveal sufficient
evidence to support a finding that the father's support
obligation is unjust or inappropriate based on the application of
the statutory factors (see Matter of Ryan v Ryan, 110 AD3d at
1181). The father, who testified that he has two other
unemancipated children at home during the summer, claimed that
his grocery bill was higher, that he purchased clothes for the
child, that he had to transport the child to more social
activities and that he paid for two camps for the child. He also
conceded that he did not ask the mother to contribute to the
child's summer activities because the mother also paid for
certain activities without contribution from him. Notably, it is
a "generally accepted fact that [although] shared custody . . .
reduces certain costs for the custodial parent, [it] actually
increases the total cost of supporting a child by necessitating
duplication of certain household costs in each parent's home"
(Bast v Rossoff, 91 NY2d 723, 730 [1998]). We have consistently
held that "[t]he costs of providing suitable housing, clothing
and food for [a child] during custodial periods do not qualify as
extraordinary expenses so as to justify a deviation from the
presumptive amount" (Matter of Ryan v Ryan, 110 AD3d at 1180-
1181; see Smith v Smith, 116 AD3d 1139, 1141 n 3 [2014];
Riemersma v Riemersma, 84 AD3d at 1477; Matter of Spoor v Spoor,
276 AD2d 887, 889 [2000]). Here, although the father enjoys more
parenting time with the child during summer vacations as a result
of the 2007 order, the costs associated with this custodial time
are not extraordinary expenses sufficient to warrant a deviation
from the basic child support award.
McCarthy, J.P., Rose and Devine, JJ., concur.
ORDERED that the order is affirmed, without costs.
ENTER:
Robert D. Mayberger
Clerk of the Court