Following fact-finding in this child support proceeding pursuant to FCA §413, the court sets forth below its findings of fact and conclusions of law. This proceeding raises an apparently novel issue of law concerning how to apply the Child Support Standards Act (“CSSA”) to a child support petition when the subject child is a third child born to the same parents out of wedlock and where there was a so-ordered waiver of the CSSA pursuant to a detailed stipulation of settlement between the parents regarding the parties’ two prior children born out of wedlock. Plaintiff and defendant1 never married or lived together. *** Although the testimony indicated that the parties may have dated briefly, they do not ever appear to have had any intention to live their lives together or to have the father play any significant role in their children’s lives.In 20 **, plaintiff became pregnant with twins as a result of the parties’ relationship. Following paternity testing, defendant acknowledged paternity of their twin daughters, born ***. Settling a prior proceeding, the parties, represented by counsel, reached a rather unique written agreement on ***, 2011. The parties amended the agreement on ***, 2015. In pertinent part, technically complying with the CSSA,2 and waiving its application, the parties agreed that the father would pay $9,000 per month in total child support for the twin children until their emancipation. The agreement recited an acknowledgment by both parties that this sum was based upon the reasonable and foreseeable needs of the children and was in settlement of all additional future expenses and cost of living adjustments.Pursuant to the original agreement as amended by the 2015 stipulation, the father was required to provide and has provided full health insurance, pharmaceutical and dental coverage for the twins and for the subject child of this proceeding, B., at a cost of $1,559.34 monthly. B. was born several weeks following execution of the amended agreement, the stated sole purpose of which was to provide Mr. A. with the ability to choose the health insurance policy to be provided. The parties did not seek to have this amended agreement to be so-ordered by the court.To ensure confidentiality of the parties’ written agreements, the parents also entered into a confidentiality agreement as part of the 2011 stipulation, pursuant to which the father agreed to, and thus far has, tendered to the mother an additional $100,000 annually for a nine-year period commencing in 2013. Those payments will terminate in 2021.3 Importantly, the parties also agreed that the $100,000 annual payments and the $9,000 monthly child support payments encompassed any possible claim for increased child support for the twins under any circumstances. The October 2015 amendment reaffirmed the 2011 agreements and both made clear that $5,000 of each of the $100,000 payments would be designated as satisfying any possible claim for upward modification of child support for the twins.Following the birth of the twins in 20**, with the exception of contact pursuant to the legal proceedings, the parties apparently did not have contact for several years, according to the father’s testimony. In early 20**, the parties conceived another child and Ms. A. gave birth to B. on ***, 20**. The father acknowledged paternity of B. As with the twins, the father has had no meaningful contact with B. B. has always resided with his mother, the twins, and C., the mother’s child with another man. C.’s father is deceased and plaintiff receives $1,700 monthly on behalf of **-year-old C. in social security benefits based upon his father’s death.The parties could not agree upon an appropriate level of child support for B. and this proceeding ensued. As detailed settlement discussions resulted in impasse, the court conducted a trial upon the petition. Plaintiff testified at some length in her own behalf, subject to probing cross-examination by defendant. Defendant testified briefly in his own behalf.The parties stipulated for purposes of this trial that the father’s annual income was $5,000,000. The parties disputed the mother’s income. Although defendant presented no competent testimony concerning the mother’s income, the court found that the mother’s testimony that her income was only about $12,000 annually was not credible, based upon the court’s observation of Ms. A. during her testimony and, separately, upon the lack of logic or consistency of her testimony, discussed infra.Plaintiff’s basic position is that the court should base its child support calculation as though the parties only have one child, B. Without specifically saying so, the logic underpinning Ms. A.’s argument is that the agreement concerning support for the twin siblings is sui generis, and that the court must separately utilize the 17 percent standard for one child4 in calculating the basic child support for B.Alternatively, plaintiff contends that the $4,500 per twin, adjusted upwardly for inflation, and an increase in the father’s income, represents the appropriate level of support for this third child. Relatedly, the mother proffers that B.’s needs, as substantiated at least in part by plaintiff’s testimony, should be utilized by the court to award support at 17 percent of the noncustodial father’s income above the cap, at an amount requested in the mother’s post-trial memorandum of $600,000, which would result in $8,500 monthly child support for B. plus 100 percent of all add-on expenses (although at trial, the mother requested $5,500 per month).Defendant counters by asserting that the court should apply the CSSA in a straightforward manner and should set child support at $1,433 per month for B. pursuant to the statutory formula defining the difference between the 25 percent of $430,000 as the capped income amount utilized for the two prior children5 and the 29 percent of that same capped amount required for three children of the same parents, as the child support amount for the twin siblings far exceeds the amount that would be calculated as basic child support using the statutory cap for basic support of $148,0006. In any case, the father contends, his payments greatly surpass any reasonable cost of living adjustment to a reasonable income cap that should be utilized. Commencing May or June 2016, Mr. A. began paying $1,500 per month in child support for B. on a voluntary basis, a figure slightly above the $1,433 the father claimed to be the appropriate level of support.Pursuant to the CSSA, the court must begin calculation of basic child support for three children of the same parents (when the children all live in the same household) by utilizing 29 percent of the combined income of the parents minus certain statutory deductions, concerning which deductions no competent proof was adduced at trial. FCA §413[1][b][3][iii]. As noted above, the parties stipulated that Mr. A.’s annual income was $5,000,000. Ms. A.’s testimony was greatly inconsistent and illogical concerning her income. The court is required to establish the parties’ support obligations “as a function of the income that is, or should have been, reflected on the party’s most recently filed income tax return.” Wallach v. Wallach, 37 AD3d 707, 708, 831 N.Y.S.2d 210 (2d Dept. 2007); FCA §413[1][b][5][i]. However, when determining income, “[a] court need not rely [solely] upon the party’s own account of her finances, but may impute income based upon the mother’s past income or demonstrated earning potential” Lennox v. Weberman, 109 AD3d 703, 703-704, 974 N.Y.S.2d 3 (1st Dept. 2013); Culhane v. Holt, 28 AD3d 251, 252, 813 N.Y.S.2d 400, 401 (1st Dept. 2006). Where a party’s account of his or her finances is not believable, “the court is justified in finding a true or potential income higher than that claimed.” Matter of Thomas v. DeFalco, 270 AD2d 277, 278, 703 N.Y.S.2d 530 (2d Dept. 2000).Although Ms. A. testified that she works 40 hours per week as a home health aide, her claimed hourly rate of $13.00 multiplied by her number of work hours claimed did not match her testimony that she earned approximately half of that amount. Moreover, she employs a nanny full-time, as well as a babysitter fairly frequently, paying them far in excess of that which she, herself, purportedly earns. In addition, the mother arranged for the nanny to live full-time at the home and occupy one of the three bedrooms without having to pay rent. C. occupies the second bedroom with the twins, while the mother and B. occupy the third bedroom.As noted above, the court need not and does not accept Ms. A.’s testimony as to her income and may impute income to plaintiff based upon her education, training and prior work history. See FCA §413[1][b][5][iv]. The testimony was sketchy and inconsistent as to the mother’s work history and earnings, and the father presented no testimony as to the mother’s earning capacity. In fact, although urging the court not to accept the mother’s representations as to her income, indicating his belief that the mother runs a successful business, the father’s proffered child support calculations essentially treated the mother’s income as zero. It is appropriate, however, to impute at least minimum wage to the mother, especially in light of her significant expenditures on a nanny and babysitter and her claimed number of hours worked. The court imputes income of $20,000 to the mother.The presumptive amount of child support pursuant to the CSSA is obtained by calculating 29 percent (the statutory percentage for three children) of the combined parental income up to the current statutory cap of $148,000. The presumptive amount of child support (.29 x $148,000) results in annual support of $42,920. As the mother’s imputed annual income is $20,000 and the father’s is the stipulated $5,000,000, the combined annual income is $5,020,000. The husband’s share of the basic child support would be $42,748 (his 99.6 percent pro rata share multiplied by $42,920), or $3,577 per month for the three children, utilizing the $148,000 statutory cap.It is well established, however, that courts may consider factors permitting deviation from the standard calculation, as delineated in FCA §413[1][f]. See Rubin v. Salla, 107 AD3d 60, 72, 964 N.Y.S.2d 41 (1st Dept. 2013); Killian v. Lowden, 236 AD2d 236, 236, 654 N.Y.S.2d 288 (1st Dept. 1997). These “f” factors include the financial resources of the parents and children; the health of the children and any special needs they may have; tax consequences; the standard of living of the child if the household had not been dissolved; non-monetary contributions of each parent toward the children; the parents’ educational needs; disparity in parental income; needs of other non-party children receiving support from one of the parents; extraordinary visitation expenses; and any other factors the court finds relevant under the circumstances. Lastly, the court must articulate its reasons for awarding child support above the statutory cap. Michael J.D. v. Carolina E.P., 138 AD3d 151, 153-54, 25 N.Y.S.3d 196 (1st Dept. 2016).In the instant case, there is no question but that the father’s resources far outstrip that of the mother, and the father’s great wealth and income are factors supporting an award of child support utilizing income above the statutory cap. There is no evidence that B. has any special needs. C.’s support is paid by the government in the form of social security benefits, which the mother receives on C.’s behalf. The parties have never been married or lived together. The child was essentially a newborn at the time of filing and never lived with the parents in an intact relationship. There is no pre-break-up lifestyle of the child to consider, although, as discussed below, the parties’ implicitly projected lifestyle for their children in common plays a significant role not only in the court’s determination to utilize income above the statutory cap in calculating basic child support, but also in determining the overall amount of child support. The court has fully considered each of the other “f” factors.Importantly, the parties themselves implicitly agreed in the 2011 agreement and 2015 amendment to utilize an income cap of $432,000 in calculating support.7 Utilizing that figure and adjusting that amount based upon the Consumer Price Index for Urban Consumers issued by the United States Department of Labor, Bureau of Labor Statistics, from 2011-2018, there was approximately a 12 percent increase in the cost of living from the time the agreement was signed in 2011 to date. This would result in utilization of a total parental income cap of $483,840 ($432,000 x 1.12) for purposes of calculating basic child support. Twenty-nine percent (three children) of $483,840 is $143,314 in annual child support, or $11,943 per month. The father’s share (99.6 percent) of that amount would be $11,895 per month. As the father is already paying $9,000 per month for the first two children, basic child support under this formula for the third child would be $2,895 ($11,895-$9,000) per month.Plaintiff mother seeks to have this court base its award of child support upon the needs of the child. Ms. A. submitted pre-trial documents claiming various sums attributable to the “needs” of B. At trial, the mother testified as to the child’s needs. The testimony was replete with contradiction and illogic. The amount of the monthly rent is not clear from the testimony, but appears to be $5,368. There are six people in the household and, as noted earlier, B. shares one of the three bedrooms with plaintiff, C. occupies the second bedroom with the twins, while the nanny lives in the third bedroom rent free, while at the same time the mother employs a babysitter for the weekends. Assuming that the rent is $5,368 per month, at most rent is attributable to B. for his fraction of a room, equaling no more than $900 per month.With respect to utility costs, the mother’s testimony that she spends $300 per month on electricity is contradicted by her written submission to the court of $211 per month and her one document pertaining to this cost submitted at trial of $118. One-sixth of this lower figure is $20 per month.Plaintiff’s testimony as to cable and internet charges was not credible. Ms. A. claimed that she paid $250 per month for these services, but submitted only one bill for $209.68 for a one-month period. The mother also testified that only two year-old B. watches television and that the other children do not, a questionable version of events. Review of the bill itself reveals that a fair portion of that bill covered premium movie channels. At most, the court will attribute $35 of that bill for B.’s expenses.With respect to her cellphone, the one monthly bill submitted indicates $294.15. Based upon Ms. A’s own testimony that the phone is used only by the mother and her two daughters, the court will not attribute any sum toward B.’s expenses.Even more questionable is plaintiff’s testimony that she pays $2,900 per month for family groceries and that the subject child’s share is $400-500 per month. Ms. A. testfied that the subject child still drinks formula, which the mother asserts costs her either $300 or $270 per month depending upon who was asking her this question. Plaintiff failed to submit any documentation in support of either aspect of those claims and Ms. A. acknowledged during her testimony that she does not keep track of her spending on items in this category.Ms. A. testified that she spends $240 per month on B.’s diapers, that she pays $18 for a 12-count bag of diapers and that the child uses nine to ten diapers per day. This would add up to 270-300 diapers per month, which would total $405-450 per month. As most parents would buy diapers in bulk, the court credits Ms. A with $150 per month in diaper expenses.Plaintiff’s testimony as to costs for the child’s clothes, dry cleaning and footwear of $1,200 per month is inconsistent and unsubstantiated. Similarly, Ms. A. did not provide any documentation to support her claim for un-reimbursed medical expenses for the subject child. It is noteworthy that the father pays the entire medical and dental premiums for B. Similarly, Ms. A.’s testimony that she spends approximately $600 per month on the child’s toys and activities was in no manner documented or credible. The court notes that plaintiff was represented by highly experienced and competent counsel and concludes that plaintiff’s failure to document her claims does not stem from difficulty of an unrepresented litigant, but rather from the mother’s lack of diligence even during the course of this litigation in seeking to provide support for her claims.With respect to the mother’s child care claims, plaintiff testified that she was previously in a vocational program, and is now working, but did not provide documentation as to how long she had engaged in a vocational program. The statute does not require payment of child care expenses during the time that a custodial parent is not working or engaged in a vocational-related program. Gina P. v. Stephen S., 33 AD3d 412, 415, 824 N.Y.S.2d 619 (1st Dept. 2006). Ms. A. acknowledged during trial that she no longer is engaged in any vocational-related program. Plaintiff did testify that she was scheduled to commence work in January 2018 as a home health aide at $11.50 per hour for a forty-hour work week. Her later testimony rendered moot any claim for child care while she was possibly attending a vocational-related program. Ms. A. testified that she had started work at $13.00 per hour; however, her claimed child care expenses, which were not documented, would far exceed any income, gross or net, at $1,050 per week (more than $50,000 annually), allegedly in cash, not to mention free room and board.In contrast, plaintiff’s 2015 New York State Tax Return indicates a $6,000 annual expenditure for child care. Under all of these circumstances, there is insufficient evidence for the court to calculate or even give a reasoned approximation of B.’s child care or other needs. Consequently, the court cannot base its award of child support upon B.’s purported needs. This does not end the analysis, however.There does not appear to be any case law directly addressing circumstances such as those present in the instant case. In Pitka v. Pitka, 121 AD3d 1321, 994 N.Y.S.2d 750 (4th Dept. 2014), the court affirmed the order of Family Court that set at 17 percent the percentage of child support for a second child. The parents had a child during marriage. As part of their divorce, the Virginia court set at 17 percent the percentage applied to their one child. After the divorce, the parties had a second child. The mother moved to New York and filed a child support petition. In affirming the Family Court determination, the court noted the exceptional circumstance that the New York court did not have jurisdiction to modify the Virginia child support order and that the subject second child in New York should also receive child support based upon 17 percent of the combined parental income, with the child support award reduced based upon the father’s payment of child support for the first child. The focus of that decision, however, was the stated lack of jurisdiction to modify the Virginia order, a situation not present in the instant case.New York courts have held that, even in circumstances in which there is an agreement concerning child support for two children, a child support order for a third child of the same parents (when the children live in the same household) should be based upon 29 percent of combined parental income at least up to the income cap. In Thomas v. DeFalco, 270 AD2d 277, 703 N.Y.S.2d 530 (2d Dept. 2000), the parents’ stipulation of settlement provided that the mother would have custody of the parties’ two daughters and the father would have custody of their son. Several years later, custody of the son was transferred to the mother, who filed a petition for upward modification of child support. The Appellate Division held that application of the CSSA was mandatory when calculating the additional child support for the third child now with the mother.In the instant case, the parties’ 2011 agreement and their 2015 amended stipulation essentially re-affirming the 2011 agreement represented a combination of the parties’ child support analysis and personal interests, most notably confidentiality concerns. Implicitly contained within those agreements, however, is the parties’ consensus as to the needs and projected desired lifestyle of their children in common. This is one of the factors the court may consider in utilizing income above the statutory cap in computing child support. The $9,000 per month for the twins included all other items related to support of the children, such as child care, educational expenses, extracurricular costs, un-reimbursed medical expenses, among other common expenses. In addition, up to $5,000 of the $100,000 annual payments to maintain confidentiality were deemed by the parties to represent any cost of living adjustments. Then, as now, the father paid the health insurance premiums for the parties’ children and Mr. A. acknowledged at trial that there is only a relatively small monthly increase in cost, approximately $500-550, for him to provide health insurance for B. The parties’ prior stipulations indicate an understanding between the parties that the father will pay the full cost of their children’s health care premiums, as well as unreimbursed medical expenses, and those understandings now include B.’s health care expenses.Although it is true that $5,000 annually or $2,500 per twin, was slated for any cost of living adjustments in child support, it appears that this figure served as part of a mutual desire to obviate any future litigation with respect to the support of the twins and did not represent any carefully calculated analysis of future child support costs. The $45,000 total (nine payments of $5,000) for this purpose could be taken into consideration when analyzing the parties’ understanding concerning the standard of living or lifestyle of their children in common. The $45,000 supplemental amount for cost of living adjustments, or $22,500 per twin, was payable over nine years, but in fact represented 14 years (from the twins’ age 7 until age 21) of cost of living adjustments. The average payment per year per child for this agreed-upon adjustment is $1,607 ($22,500 divided by 14 years) per year, or $134 per month.The court initially considered adding $134 per month to the $2,895 in child support discussed above so that future child support increases would be covered by one comprehensive order based upon the parties’ apparent understanding as to the projected lifestyle of their children in common. The court declines to do so, however. The parties specifically agreed in the 2011 so-ordered stipulation allocuted in open court as to the full amount of child support for the twins, covering basic child support, as well as both voluntary and mandatory add-ons. The parties explained why they agreed to this sum. The parties further agreed in 2011 and in 2015 that, in lieu of future child support increases, a specified portion of nine specific $100,000 payments would be deemed appropriate to satisfy any claim for such child support increases. With respect to B., however, there is no such agreement and there is no annual lump sum payment from which the parties have designated a portion to cover future child support increases. In addition, as noted above, it appears that the $5,000 annual figure served at least in some respects to be part of a mutual desire to obviate any future litigation with respect to the support of the twins as part of the overall confidentiality payments, and did not represent any carefully calculated analysis of future child support costs.Thus, while the court may and does extrapolate from the parties’ prior agreements the parents’ understanding as to what they believe their children’s present lifestyle should be, and has utilized that projection as part of the calculation of present child support for B., the court may not in the absence of an agreement between the parties utilize a specific additional amount of present child support to foreclose any future applications for upward modification of child support. The decision not to calculate an additional amount of present child support to avert any future child support applications is also based upon the precept that a party cannot waive future child support applications based upon substantial changes of circumstances. See FCA §451[3][a].In referring to the parties’ 2011 agreement and 2015 amendment, among other reasons stated above, to arrive at an income cap of $483,840 in calculating support, the court also considered the parties’ stated preference for an “all in” support number, rather than a combination of basic support and numerous mandatory and voluntary add-ons. Accordingly, the court’s $2,895 award is inclusive of any mandatory and voluntary add-ons, except for medical: the court is ordering Mr. A to continue providing B.’s health insurance and 100 percent of any reasonable unreimbursed medical expenses. FCA §413[1][c][5]. The court has also considered Ms. A’s testimony about her employment and alleged employment-related childcare expenses, as stated above. In consideration of the higher income cap in calculating support and the parties’ designation of $9,000 as sufficient to cover both child support and child care for the twins, the court therefore used the resultant income cap of $483,840 to determine a monthly child support amount for all three children that would include both the basic child support amount calculated per FCA §413[1][c][1-3] and the child care expenses that are to be added to those calculations in deriving the basic child support obligation under FCA §413[1][c][1-4].For all of the reasons set forth above, this court determines that the father shall pay to the mother $2,895 in monthly child support for B. A. Finally, defendant is ordered to obtain a life insurance policy for the benefit of B. A. within 30 days of service of a copy of this order with notice of entry sufficient to guarantee his child support payments for the subject child. See Michael J.D. v. Carolina E.P., 138 AD3d 151, 158, 25 N.Y.S.3d 196 (1st Dept. 2016).Therefore, Ms. A is entitled to $2,895 in monthly child support for B., retroactive to the date of filing. Signorelli v. Signorelli, 50 AD3d 772, 857 N.Y.S.2d 164 (2d Dept. 2008); FCA §449; Sonmez v. Sonmez, 121 AD2d 883, 883, 503 N.Y.S.2d 574 (1st Dept. 1986). Mr. A. is entitled to credit for his voluntary child support payments. As the father has always satisfied his child support obligations, there is no need to employ the services of the Child Support Unit.Accordingly, it is hereby,ORDERED, that defendant shall tender to plaintiff monthly child support, inclusive of all mandatory and voluntary add-on expenses, in the amount of $2,895 retroactive to the date of filing of the instant petition, with payments due the first of each month commencing August 1, 2018; and it is further,ORDERED, that defendant is entitled to credit for all past voluntary child support payments for the subject child of $1,500 per month; and it is further,ORDERED, that defendant shall tender to plaintiff all retroactive child support obligations within 30 days of service of a copy of this order with notice of entry; and it is further,ORDERED, that defendant shall continue to provide full medical, dental and mental health insurance benefits for the subject child and to reimburse plaintiff for reasonable such expenses not covered by this insurance; and it is further,ORDERED, that, if he has not already done so, defendant shall obtain a life insurance policy for the benefit of B. A. within 30 days of service of a copy of this order with notice of entry sufficient to guarantee his child support payments for the subject child.Dated: July 18, 2018New York, New York
