Opinion
05-2009.
Decided February 16, 2006.
Stephen D. Aronson, Esq. Counsel for Plaintiff.
Miguel A. Reyes, Esq. Counsel for Defendant.
This matter was transferred from the Matrimonial Screening Part after the parties settled all issues except child support, custody, and visitation. The parties made an agreement concerning custody and visitation, utilizing the services of Center for Dispute Settlement, and entered into a stipulated order dated January 24, 2006. Thus, the only issue left to be tried by this Court is the issue of child support.
The parties, at the time of their separation in 2004, executed a separation agreement dated May 25, 2004, wherein all issues incident to the divorce, including child support, were settled. However, the husband after commencing the divorce action, sought to, and by stipulation of the parties, did, file and serve an amended complaint, wherein he sought to have the support provisions of the agreement overturned, alleging that such terms are invalid and unconscionable, and in violation of the Child Support Standards Act.
The husband then made a motion for an order modifying his support obligation, daycare contribution, uninsured health care expenses, and requesting the wife to provide medical insurance for the parties' child.
Trial was held on the sole issue of child support on January 31, 2006, and the parties were given until February 3, 2006 to submit any authority.
The Court having heard the allegations and proofs of the parties hereto, together with all submissions, and due deliberation having been had thereon, does hereby decide and find the essential facts which I deem established by the evidence as well as reach the following conclusions of law.
The parties were married June 22, 2000, it being the third marriage for the husband and the first marriage for the wife. There is one child of the marriage, a son, currently an infant. At the time of the marriage, the husband worked for Pooler Enterprises, as a heavy equipment operator, and he also had his chauffeur's license, which allowed him to move heavy equipment from site to site.
The parties separated July, of 2004, having executed the separation agreement May, 2004. The separation agreement was prepared by the wife's present attorney. The husband was not represented at the time but he reviewed it and executed it before a notary.
The agreement states the parties income at the time of their last tax year (2003) was father $40,966.88 gross for the father and $21,695.89 gross for the mother from her employment at Rochester Eye Human Parts. The agreement then calculates the support, after making adjustments for FICA, on only the father's income. The calculations yielded annual support of $6,431.59, and required the father to pay $123.68 weekly to the mother, as well as obtain, and keep in full force, medical insurance for the child. The agreement required the father to pay 65% of uncovered medical expenses, and the mother to pay 35% of these. The agreement also required the father pay all of the child's day care expenses.
The parties lived by this agreement for some time, and the father made the required payments, and continued to do so, up to the time of the hearing. However, after he was laid off from his job in December, 2004, he experienced difficulties in paying his bills, while he received $405.00 per week in unemployment benefits. He testified that this lay off was unanticipated, in that he had worked year round for most of the years prior to 2004. However, on cross examination, when confronted with his 2000 and 2002 tax returns which showed he received unemployment compensation of $1460 in 2000 and $290 in 2002, he admitted that he had been laid off occasionally for the inclement weather months during his career as a heavy equipment operator in western New York.
The father was laid off from his present job at Seneca Meadows on December 31, 2005. He commenced work there in May, 2005. He currently receives $405 per week unemployment, and his employer is continuing health insurance for his son and himself, at no cost to the father. The father decided to change employers because he believes he will eventually be employed year round and because of the health insurance benefit for he and his son. His salary had been increased from $17.00 per hour when he started at Seneca Meadows, to $18.00 an hour at the time he was last working. He was making $18.25 to $18.50 an hour at Pooler Enterprises when he last worked there.
The proof showed that the mother had recently changed employment. She now works for the University of Rochester, and although her hourly rate of $13.00 is less than the $13.90 she earned per hour at Rochester Eye and Human Parts, the benefits she receives, including health insurance for herself, at no cost, more paid vacation and sick leave time, and more flexibility in her hours, plus the potential for free college tuition for her child means that this is a better job for her and her child.
The mother testified that the child care expense is $165.00 per week. Her gross wages for 2005 were $26,895.76. The father's gross wages for 2005 were $32,151.29, and his unemployment benefit was $6885.00.
Domestic Relations Law section 240[1-b][h] requires that an agreement concerning child support
"shall include a provision stating that the parties have been advised of the provisions of this subdivision, and that the basic child support obligation provided for therein would presumptively result in the correct amount of child support to be awarded. In the event that such agreement or stipulation deviates from the basic child support obligation, the agreement or stipulation must specify the amount that such basic child support obligation would have been and the reason or reasons that such agreement or stipulation does not provide for payment of that amount. Such provision may not be waived by either party or counsel."
The Child Support Standards Act requires that each party pay their pro rata share of child care expenses, when the custodial parent is working, and uninsured medical expenses, both of which are part of the basic child support obligation. DRL 240[1-b][c]. If such expenses are not pro rated, then this is a deviation from the CSSA, and any agreement providing for this deviation would need to comply with the DRL 240[1-b][h] requirements.
By failing to pro rate child care expenses and uncovered medical expenses, Article IV of the parties' May 25, 2005 agreement deviates from the CSSA. Because the agreement does not comply with DRL 240[1-b][h], this Court must vacate the child support provisions. Jessup v. LaBonte, 289 AD2d 295 (2nd Dept, 2001); Tartaglia v. Tartaglia, 260 AD2d 628 (2nd Dept, 1999); Phillips v. Phillips, 245 AD2d 457 (2nd Dept, 1997); Weimer v. Weimer, 281 AD2d 989 (4th Dept., 2001).
The plaintiff is entitled to recalculation as of the date of filing of his amended complaint. See Luisi v. Luisi 6 AD3d 398 (2nd Dept., 2004). And, in view of the finding that the support provisions of the agreement are unenforceable, the Court need not reach the father's contention that he is entitled to a downward modification based on an unanticipated and unreasonable change in circumstances. Id. at 401.
The child support is recalculated based on the parties' 2005 income as follows:
The father's earned income was $32,151.29, and he received unemployment benefits totaling $6885.00, for total gross income of $39,036.29. FICA was $2459.57, leaving income for child support purposes of $36,576.72. The mother's gross income from Rochester Eye Human Parts was $26,895.76. She received no pay check from University of Rochester until 2006. FICA was $2057.26, leaving income for child support purposes of $24,838.50. Combined parental income was $61,415.22. The appropriate percentage is 17%, making child support $10,440.59 per year. The father's pro rata share of this is 60% and the mother's is 40%. The father is thus ordered to pay child support of $6264.35 per year, or $120.47 per week. The father will pay child support directly to the mother, unless either party, at any time, seeks the services of the appropriate Support Collection Unit, in which case, payments will be made through such Unit.
Further, the father shall pay 60% of the child care expenses of the child, the mother to provide him with the day care bills, and the father to reimburse the mother directly for 60% of the day care expenses incurred, within one week of receipt of any such bill.
The father shall pay 60% of the uncovered medical and dental expenses of the child. The mother will again present such bills to the father, and he will reimburse the mother directly for such expenses within one week of receipt of any such bill.
The father will continued to provide medical insurance for the child, so long as it is available to him, through his employment, and the mother will reimburse the father 40% of the out of pocket expense of such coverage, if any, incurred and attributed solely to the cost of coverage for the child. The father testified at present that a Blue Choice family plan is being provided to him by his employer at no cost to him.
The $120.47 per week child support amount is ordered retroactive to November 18, 2005. Payments will continue on the day of the week the parties have established as the payment day. The father is entitled to a credit of $3.21 per week from November 18, 2005 to present for child support and for 40% of the day care expenses incurred since such time to the present. The mother testified that this expense is $165.00 per week. The attorneys are directed to assist the parties to determine the total amount of such credit, and the total amount of any credit due for uncovered health care expenses, if any, for this same period, there being a 5% difference between what the father was to pay under the agreement, and the amount due under this order.
The total amount of such credit due for over payment of child support, child care, and uncovered medical expenses, will be spread out over the on going child support payments, such that the father will pay $20.00 less per week, or $100.47 per week until such credit is extinguished.
The foregoing constitutes the Opinion, Decision and Judgment of this Court.
Plaintiff's counsel to submit Judgment Roll in accordance herewith and the parties previous stipulations within sixty (60) days.
SO ORDERED.