Opinion
CAF 02-00417
December 30, 2002.
Appeal from an order of Family Court, Steuben County (Latham, J.), entered May 4, 2001, which, upon objections filed by respondent, modified the order of the Hearing Examiner.
FREDERICK H. AHRENS, JR., COUNTY ATTORNEY, BATH (DEETZA G. BENNO OF COUNSEL), FOR PETITIONER-APPELLANT.
BARTON SMITH, ELMIRA (CHRISTOPHER A. BARTON OF COUNSEL), FOR RESPONDENT-RESPONDENT.
PRESENT: PINE, J.P., WISNER, HURLBUTT, KEHOE, AND BURNS, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the order so appealed from be and the same hereby is affirmed without costs.
Memorandum:
In this support proceeding pursuant to article 4 of the Family Ct Act, petitioner appeals from an order of Family Court that, upon objections filed by respondent, modified the order of the Hearing Examiner. Contrary to petitioner's contention, the court was empowered to make its own findings of fact ( see Family Ct Act § 439 [e] [ii]; Matter of Eberhard v. Brechue, 269 A.D.2d 852, 853; Matter of Hughes v. Wasik, 224 A.D.2d 982) and to use current income figures for a tax year not completed to determine respondent's child support obligation ( see Matter of Monroe County Dept. of Social Servs. v Mercado, 241 A.D.2d 948; Matter of Paul v. Rodems, 226 A.D.2d 1047, 1048). We conclude that the record supports the court's determination that the income of respondent in the year 2001 would be less than his income in the year 2000. As the dissent notes, the court relied in part upon a letter written by respondent's supervisor indicating that respondent had worked 800 hours of overtime in the year 2000 because of "unique circumstances." The letter was obtained by respondent at the request of the Hearing Examiner and was received in evidence without objection by petitioner. In testifying before the Hearing Examiner, respondent explained what those "unique circumstances" were and provided the basis for determining his "normal" overtime. Contrary to the conclusion of the dissent, the court properly relied in part upon the letter in determining respondent's income for the year 2001. "Evidence, though not competent, received without objection may be relied upon to establish a fact in controversy" ( Ford v. Snook, 205 App. Div. 194, 198, affd 240 N.Y. 624; see Matter of MacDonald, 40 N.Y.2d 995, 996, rearg dismissed 42 N.Y.2d 1102; Matter of Findlay, 253 N.Y. 1, 11; Brooklyn Union Gas Co. v. Arrao, 100 A.D.2d 949).
We further conclude that the court did not abuse its discretion in ordering respondent to pay his pro rata share of the college expenses of the parties' daughter and in determining that he is entitled to a credit for the child support paid during the period that the daughter is away at college ( see Matter of Crippen v. Bender, 294 A.D.2d 890; Matter of Houck v. Houck, 246 A.D.2d 905, 906). Although the dissent concludes that the court acted arbitrarily in determining the amount of the credit and in granting respondent the credit against the college expenses rather than against his child support obligation, that issue was not raised on appeal. Furthermore, although the dissent further concludes that the court erred in granting respondent a credit for the entire fall 2000 semester, it granted that credit only because it ordered respondent to share in the college expenses for that semester.
I respectfully dissent and would reverse the order of Family Court, deny respondent's objections to the order of the Hearing Examiner, and reinstate that order in its entirety. The Child Support Standards Act (CSSA) provides that a parent's obligation to pay child support shall be based upon the parental income "as should have been or should be reported in the most recent federal income tax return" (Family Ct Act § 413 [b] [5] [i]; see Matter of Kay v. Cameron, 270 A.D.2d 939; Matter of Monroe County Dept. of Social Servs. v. Mercado, 241 A.D.2d 948; Matter of Niagara County Dept. of Social Servs. v. C.B. [appeal No. 3] , 234 A.D.2d 897, 900). "Although '[n]othing in the statute prohibits reliance upon partial information from a tax year not yet completed'" ( Winnert-Marzinek v. Winnert, 291 A.D.2d 921, 922; see Mercado, 241 A.D.2d at 948; Matter of Paul v. Rodems, 226 A.D.2d 1047, 1048), here the court lacked any evidentiary basis for extrapolating respondent's income for the uncompleted 2001 tax reporting year ( see C.B., 234 A.D.2d at 900). The support proceeding conducted before the Hearing Examiner took place only a few weeks into the year 2001, and the record contains no information concerning respondent's actual income during those weeks. Indeed, the most recent information before the Hearing Examiner consisted of respondent's pay stub for the period ending November 25, 2000. That pay stub set forth a year-to-date income of $35,902.37, a figure that the Hearing Examiner reasonably relied upon in determining respondent's annual income for the year 2000. The only other documentation submitted by respondent consisted of unsigned copies of tax returns for the year 1999 and a financial affidavit that, although dated December 7, 2000, understated by nearly one half respondent's actual income for that year.
In disregarding respondent's income for the year 2000, the court relied on a December 27, 2000 letter of respondent's supervisor. That letter indicated that respondent had worked 800 hours of overtime in the year 2000 because of "unique circumstances." The letter further indicated that those circumstances had "changed" and that the supervisor did "not foresee the opportunity for [respondent] to work this amount of overtime in the next year." Although, as the majority notes, petitioner failed to object to the letter as inadmissible hearsay, the Hearing Examiner nevertheless properly disregarded the letter because it was not competent evidence and was speculative, and further because it failed to quantify how much overtime respondent was expected to work in the year 2001. The court thus erred in according the letter any evidentiary worth and in relying on its vague assertions as a basis for extrapolating respondent's 2001 (i.e., almost entirely future) income. Moreover, the court erred in calculating respondent's income for CSSA purposes based on a barely begun tax-reporting year for which it lacked any reliable information.
In addition, the Hearing Examiner properly exercised her discretion in declining to grant respondent a credit against his child support obligation based on his mandated contributions toward the child's college expenses ( see generally Burns v. Burns, 233 A.D.2d 852, 853, lv denied 89 N.Y.2d 810; Paro v. Paro, 215 A.D.2d 965, 966). In contrast, the court erred in granting respondent "a credit toward tuition equal to [one third] of" his past child support payments. The court acted arbitrarily in granting respondent a credit against his contributions toward the college expenses for one third of his basic child support obligation, with express reference to "tuition" costs and without any apparent consideration of what proportion of the overall college expenses relates to room and board. Moreover, if a credit is to be given, it should be against the child support obligation and for contributions toward the college expenses, not vice versa ( see Rohrs v. Rohrs, 297 A.D.2d 317, 318; Reinisch v. Reinisch, 226 A.D.2d 615, 616; Guiry v. Guiry, 159 A.D.2d 556, 557), and should reflect only those college expenses, such as room and board, that duplicate child support payments ( see Rohrs, 297 A.D.2d at 318; Matter of Houck v. Houck, 246 A.D.2d 905, 906; Guiry, 159 A.D.2d at 557). In my view, a credit against child support for such room and board expenses is not automatically warranted and should be the exception rather than the rule ( see generally Finkelstein v. Finkelstein, 268 A.D.2d 273, 275, lv denied 96 N.Y.2d 703; Matter of Bode v. Bode, 254 A.D.2d 355, 355-356; Burns, 233 A.D.2d at 853; Matter of Haessly v. Haessly, 203 A.D.2d 700, 702-703). That is because the custodial parent's expenses of maintaining a home for the child are largely fixed and thus not necessarily reduced while the child is away at college, certainly not to the extent of the child's room and board expenses (or even the obligor's prorated contributions thereto) ( see generally Fendsack v. Fendsack, 290 A.D.2d 682, 683; Haessly, 203 A.D.2d at 702; see also Burns, 233 A.D.2d at 853). The majority in Burns ( 233 A.D.2d at 853) determined that conferring credit for contributions for college expenses "'depends upon the facts and circumstances in the particular case, taking into account the needs of the custodial parent to maintain a household and provide certain necessaries' ( Paro v. Paro, 215 A.D.2d 965, 966)," and it apparently rejected the dissent's conclusion that contributions toward the student's room and board necessarily duplicate child support. Indeed, the decision in Burns reflects this Court's reasoning that college expenses represent an additional or increased expense to the household and, as such, may require an increment, not an offset, to child support. Matter of Crippen v. Bender ( 294 A.D.2d 890), the case relied upon by the majority, involved a child who attended school year-round, and thus is distinguishable from this case.
Further, in granting respondent a credit for child support and against his contributions toward the college expenses for the entire fall 2000 semester, the court in effect granted respondent a retroactive reduction of his child support obligation, which respondent never sought ( see Matter of Kurzon v. Kurzon, 246 A.D.2d 693, 694-695), and which in any event should not have been granted with respect to any period prior to the filing of the petition. As the Court of Appeals has noted in an analogous situation, "'[i]f a party obligated to pay child support wishes to avoid making payment * * * that party must make an affirmative request for relief'" ( Matter of Dox v. Tynon, 90 N.Y.2d 166, 174; see Scheinkman, Practice Commentaries, McKinney's Cons Laws of NY, Book 14, Domestic Relations Law § 244, at 557; see also Matter of Alvarez v. Alvarez, 292 A.D.2d 524; Wheeler v. Wheeler, 261 A.D.2d 398; see generally Domestic Relations Law § 236 [B] [7] [a]; § 240 [1] [h]; Rosen v. Rosen, 260 A.D.2d 361; O'Brien v. O'Brien, 195 A.D.2d 993).