Opinion
(1771) CA 01-01571
December 21, 2001.
(Appeal from Judgment of Supreme Court, Onondaga County, Paris, J. — Matrimonial.)
PRESENT: GREEN, J.P., HAYES, HURLBUTT, BURNS AND LAWTON, JJ.
Judgment unanimously affirmed without costs.
Memorandum:
The parties were married in 1985 and five children were born of the marriage. In April 1999 plaintiff commenced a divorce action, and defendant counterclaimed for a divorce on the ground of abandonment. The parties thereafter stipulated to a divorce based on the counterclaim. In October 1999 the parties entered into a separation agreement in which the parties agreed that "[t]he Wife will accept $0.00 as child support at this time." The judgment of divorce nevertheless ordered plaintiff to pay $25 per month as support for the parties' four unemancipated children retroactive to April 1999.
Plaintiff is correct that a state is prohibited from enacting child support guidelines that impose "an irrebuttable mandatory minimum" amount of child support ( Matter of Rose v. Moody, 83 N.Y.2d 65, 69, cert denied sub nom. Attorney Gen. of N. Y. v. Moody, 511 U.S. 1084; see, 42 U.S.C. § 667 [b] [2])). Here, however, Supreme Court did not order child support in the amount of $25 as the mandatory minimum pursuant to subdivision (1)(g) of Family Court Act § 413 ( cf., Matter of Deborah A. D. v. David E. C., 217 A.D.2d 1005, 1005-1006). Rather, the court ordered that amount pursuant to subdivision (1)(a) of Family Court Act § 413, which provides that "the parents of a child under the age of twenty-one years are chargeable with the support of such child and, if possessed of sufficient means or able to earn such means, shall be required to pay for child support a fair and reasonable sum as the court may determine [emphasis added]." "[A] parent's child support obligation is not necessarily determined by his or her existing financial situation but, rather, by his or her ability to provide support" ( Matter of Lutsic v. Lutsic, 245 A.D.2d 637, 638). Consequently, the court did not abuse its discretion in ordering plaintiff to pay child support in the amount of $25 per month ( see, Parry v. Parry, 93 A.D.2d 989, 990).