S.W. v. G.S.-G.

DECISION & ORDER AFTER TRIAL On July 14, 2022, the mother, S.W. (hereinafter “Mother” or “Ms. W”) filed an upward modification petition against the father, G. S.-G. (hereinafter “Father” or “Mr. S-G”). The mother sought to increase Mr. S-G’s child support obligation for the parties’ son, G (hereinafter “G” or “son” or “subject child”). Despite attempts to settle the matter, the parties were unable to resolve the case. The matter was thus scheduled for a trial. On January 9, 2023, both parties were present, sworn, advised of their right to counsel, and waived counsel. A trial in the matter commenced.¹ Only two witnesses testified: Ms. W and Mr. S-G. Both parties admitted documentary evidence. After the close of the proof, the parties delivered their summations. The Court reserved decision. Having considered the evidence presented at trial as well as the law, the Court’s determination follows: THE EVIDENCE TESTIMONIAL EVIDENCE Ms. W’s Testimony Ms. W testified that the parties’ order, issued in 2016, directs Mr. S-G to pay $100.00 monthly toward G’s support. She stated that as G gets older, his needs have increased. She elaborated that G eats more food, wants to participate in extra-curricular activities, and needs new clothes and sneakers on a regular basis. Ms. W testified that Mr. S-G’s $100.00 monthly child support obligation fails to meet G’s needs. She told the Court that Mr. S-G is no longer earning minimum wage as he was when the parties’ order was created. She maintained that since Mr. S-G earns more money, he should be ordered to pay more child support. Ms. W asked the Court to issue a modified order consistent with the law. Mr. S-G’s Testimony Mr. S-G testified that since he learned that Ms. W was pregnant, he began providing for his son’s needs. He told the Court that when he was younger, his parents helped him to support G. He stated that thereafter, he was court-ordered to pay $100.00 monthly towards his son’s support. He testified that when Ms. W asks for additional money for G, he provides it to her. Mr. S-G told the Court that he has matured and his life has improved. He asserted that the basis for Ms. W’s filing for more child support is her jealousy of his betterment. Mr. S-G acknowledged that he used to earn minimum wage. He conceded that he has a better paying job now. Mr. S-G maintained that since the cost of living has increased, his expenses have increased. He told the Court that he can not afford to pay child support in accordance with the Child Support Standards Act because such an obligation “won’t fit into [his] budget.” Mr. S-G testified that his monthly expenses include a 2022 BMW car lease, car insurance, rent, gas, food, and entertainment. He explained that he leased his 2022 BMW because it would have cost the same amount to pay for public transportation to and from New York City where he works. DOCUMENTARY EVIDENCE Ms. W admitted her Northwell Health Employee Benefit Program documents into evidence as Petitioner’s Exhibit 1. Ms. W admitted G’s camp and extra-curricular activities expenses documents into evidence as Petitioner’s Exhibit 2. Mr. S-G admitted his December, 2022 Capital One 360 bank account statement into evidence as Respondent’s Exhibit A. Mr. S-G admitted his DGA Security Systems, Inc. pay stub, dated September 8, 2022, into evidence as Respondent’s Exhibit B. Mr. S-G admitted a list he created of his income and expenses into evidence as Respondent’s Exhibit C. The Court took judicial notice of the parties’ mandatory financial disclosure submitted pursuant to New York Family Court Act §424-a, which had been scanned into the Unified Court Management System’s database. DISCUSSION A family court has the authority to modify child support orders on grounds set forth within the New York State Family Court Act (hereinafter “FCA”). See N.Y. FAM. CT. ACT §451 (McKinney’s 2023). Prior to the effective date of the 2010 amendments to FCA §451, the Family Court could only modify an existing child support order upon a showing of a substantial change in circumstances. See N.Y. FAM. CT. ACT §451(3)(a) (McKinney’s 2023); see also Lopez v. Campoverde, 201 A.D.3d 719, 720 (2d Dep’t 2022); Castelli v. Maiuri-Castelli, 198 A.D.3d 752, 753 (2d Dep’t 2021); Funaro v. Kudrick, 128 A.D.3d 695, 696 (2d Dep’t 2015); Radday v. McLoughlin, 106 A.D.3d 1015, 1015-16 (2d Dep’t 2013); see also Kasun v. Peluo, 82 A.D.3d 769, 771 (2d Dep’t 2011); Ish-Shalom v. Wittman, 81 A.D.3d 648, 648 (2d Dep’t 2011); Aranova v. Aranova, 77 A.D.3d 740, 40 (2d Dep’t 2010). In making a determination regarding whether or not a change in circumstances meriting a modification occurred, a court must consider the following factors: (1) the children’s increased needs; (2) any cost of living increase if it creates greater expenses for the children, (3) a parent’s loss of income or assets; (4) a substantial improvement in a parent’s financial situation; and, (5) the children’s current and prior lifestyles. See Castelli, 198 A.D.3d at 753; see also Bishop v. Bishop, 170 A.D.3d 642, 644 (2d Dep’t 2019); Baumgardner v. Baumgardner, 126 A.D.3d 895, 896-97 (2d Dep’t 2015); see also Fantel v. Stamatatos, 59 A.D.3d 717, 717-18 (2d Dep’t 2009). The 2010 amendments to FCA §451 added additional criteria from which a family court could modify child support orders.² These criteria are the following: (1) three years passed since the order was last entered, modified or adjusted; or, (2) a party’s gross income changed by at least fifteen per cent since the order was last entered, modified or adjusted; or, (3) a party’s gross income reduced due to employment termination through no fault of their own and that party made a good faith effort to find a new job corresponding to his or her qualifications, education, and experience.³ See N.Y. FAM. CT. ACT §451(3)(b) (McKinney’s 2023); see also Castelli, 198 A.D.3d at 753-754; Bishop, 170 A.D.3d at 644. The parties’ 2016 child support order was entered subsequent to the 2010 amendments. Thus, the 2010 amendments apply to the instant action. The relevant time period for the purposes of determining a modification application is the time frame between when the order sought to be modified was issued and the filing of the petition. See Lopez, 201 A.D.3d at 720 (change measured by comparing parties’ financial situation at time of application with time of order to be modified); see also Bishop, 170 A.D.3d at 644 (same); Tomassi v. Suffolk Cty. Dep’t of Soc. Servs., 144 A.D.3d 930, 931 (2d Dep’t 2016); Saraguard v. Saraguard, 125 A.D.3d 982, 983 (2d Dep’t 2015); Kasun v. Peluso, 82 A.D.3d 769, 771 (2d Dep’t 2011). The evidence at trial established that the parties’ 2016 order was entered more than three years ago. The evidence also established that Mr. S-G was earning minimum wage when the parties’ order was issued. The evidence further established that Mr. S-G is currently earning $23.00 an hour which represents more than the current minimum wage on Long Island.⁴ Mr. S-G’s argument that he is unable to pay increased child support because it does not fit into his budget is unpersuasive. The law is clear that a party must provide 17 percent of their income towards a child’s support. See N.Y. FAM. CT. ACT §413(1)(b)(3)(i) (McKinney’s 2023). Mr. S-G’s desire to live a lavish lifestyle by leasing a 2022 BMW and spending money on entertainment in lieu of properly supporting his son represents poor judgment and an inability to prioritize the needs of his child.⁵ The Court finds See e.g. Clarke v. Clarke, 193 A.D.3d 929, 930 (2d Dep’t 2021) (father failed to show inability to pay); Martucci v. Nerone, 192 A.D.3d 1107, 1109 (2d Dep’t 2021) (affirming willful finding where, inter alia, father made other payments rather than child support); Jaffe v. Jaffe, 248 A.D.2d 471, 472 (2d Dep’t 1998) (upholding willful determination where father did not pay but had money available); Cheryl R. v. Laurence R., 223 A.D.2d 484, 485 (1st Dep’t 1996) (where modification filed due to reallocation of income, holding payor must find other means of meeting child support obligation). His expectation that Ms. W will support G while he provides a mere $100.00 monthly and sometimes, when asked, a minuscule amount of extra money, is selfish and illthought- out. Perhaps, most disturbing, is Mr. S-G’s December bank account statement. His statement sets forth, inter alia, an unexplained $16,392.02 check deposit, a $3,662.96 purchase from BH Photo and a $2,171.41 purchase from Apple Store. Although not proven, such transactions suggest there may be an additional source of income being garnered by Mr. S-G. In light of the evidence presented, the Court finds that Ms. W has met her burden of establishing that three years elapsed since the parties’ child support order was entered and Mr. S-G’s income increased by 15 percent or more. Thus, the Court must recalculate the parties’ 2016 order. The Court finds that Ms. W’s income is $43,680.00 annually as reflected on her September 18, 2022 paystub.⁶ The Court finds that Mr. S-G’s income is $47,840.00 annually as reflected on his September 8, 2022 pay stub.⁷ The Court now applies the Child Support Standards Act (hereinafter “CSSA”) guidelines to the parties’ incomes in calculating their basic child support obligations. Since Ms. W’s income is $43,680.00 annually and Mr. S-G’s income is $47,840.00 annually, the parties’ child support computation is as follows: The parties’ combined gross income is $91,520.00 annually and the parties’ combined adjusted gross income is $83,672.68 annually.⁸ 17 percent of $83,672.68 yields a $14,224.36 per year child support obligation, or a $1,185.36 monthly child support obligation for both parents. Based upon their respective incomes, Ms. W’s pro rata share of the basic child support obligation is 48 percent and Mr. S-G’s pro rata share of the basic child support obligation is 52 percent. Since Mr. S-G’s pro rata share of the basic child support obligation is 52 percent, his monthly child support obligation is $142.00 weekly, which calculates to be $7,384.00 annually. The Court finds no basis to deviate from the CSSA as Mr. S-G’s pro rata share of the basic child support obligation is neither unjust or inappropriate. ADJUDGED, that Ms. W has met her burden of establishing that three years elapsed since the parties’ child support order was entered and Mr. S-G’s income increased by 15 percent or more; and it is further, ADJUDGED, that Ms. W’s modification petition is hereby granted; and it is therefore, ORDERED, that Mr. S-G shall pay $142.00 weekly towards the support of G. The parties’ child support order shall continue to be paid through the Support Collection Unit by way of a wage garnishment from Mr. S-G’s employer. Mr. S-G’s modified obligation shall be retroactive to the petition’s filing date of July 14, 2022. Ms. W’s pro rata share of the basic child support obligation shall be 48 percent and Mr. S-G’s pro rata share of the basic child support obligation shall be 52 percent for medical premiums, unreimbursed medical expenses and reasonable child care. Ms. W shall continue to cover G under her health insurance through her employer. This constitutes the decision, opinion and order of the Court. Dated: January 18, 2023     Check applicable box: Order mailed on [specify date(s) and to whom mailed]: Order received in court on [specify date(s) and to whom given]: YOUR WILLFUL FAILURE TO OBEY THIS ORDER MAY, AFTER COURT HEARING, RESULT IN YOUR COMMITMENT TO JAIL FOR A TERM NOT TO EXCEED SIX MONTHS FOR CRIMINAL NON-SUPPORT OR CONTEMPT OF COURT; YOUR FAILURE TO OBEY THIS ORDER MAY RESULT IN SUSPENSION OF YOUR DRIVER’S LICENSES, STATE-ISSUED PROFESSIONAL, TRADE, BUSINESS AND OCCUPATIONAL LICENSES AND RECREATIONAL AND SPORTING LICENSES AND PERMITS; AND IMPOSITION OF REAL OR PERSONAL PROPERTY LIENS. PURSUANT TO SECTION 1113 OF THE FAMILY COURT ACT, AN APPEAL BY WAY OF OBJECTION MUST BE TAKEN WITHIN 30 DAYS OF RECEIPT OF THE ORDER BY APPELLANT IN COURT, 35 DAYS FROM THE DATE OF MAILING OF THE ORDER TO APPELLANT BY THE CLERK OF COURT, OR 30 DAYS AFTER SERVICE BY A PARTY OR THE ATTORNEY FOR THE CHILD UPON APPELLANT, WHICHEVER IS EARLIEST. Check applicable box: Order mailed on [specify date(s) and to whom mailed]: Order received in court on [specify date(s) and to whom given]: INFORMATION CONCERNING COST OF LIVING ADJUSTMENTS AND MODIFICATIONS NOTE: (1) THIS ORDER OF CHILD SUPPORT SHALL BE ADJUSTED BY THE APPLICATION OF A COST OF LIVING ADJUSTMENT AT THE DIRECTION OF THE SUPPORT COLLECTION UNIT NO EARLIER THAN TWENTY-FOUR MONTHS AFTER THIS ORDER IS ISSUED, LAST MODIFIED OR LAST ADJUSTED, UPON THE REQUEST OF ANY PARTY TO THE ORDER OR PURSUANT TO PARAGRAPH (2) BELOW. UPON APPLICATION OF A COST OF LIVING ADJUSTMENT AT THE DIRECTION OF THE SUPPORT COLLECTION UNIT, AN ADJUSTED ORDER SHALL BE SENT TO THE PARTIES WHO, IF THEY OBJECT TO THE COST OF LIVING ADJUSTMENT, SHALL HAVE THIRTYFIVE (35) DAYS FROM THE DATE OF MAILING TO SUBMIT A WRITTEN OBJECTION TO THE COURT INDICATED ON SUCH ADJUSTED ORDER. UPON RECEIPT OF SUCH WRITTEN OBJECTION, THE COURT SHALL SCHEDULE A HEARING AT WHICH THE PARTIES MAY BE PRESENT TO OFFER EVIDENCE WHICH THE COURT WILL CONSIDER IN ADJUSTING THE CHILD SUPPORT ORDER IN ACCORDANCE WITH THE CHILD SUPPORT STANDARDS ACT. (2) A RECIPIENT OF FAMILY ASSISTANCE SHALL HAVE THE CHILD SUPPORT ORDER REVIEWED AND ADJUSTED AT THE DIRECTION OF THE SUPPORT COLLECTION UNIT NO EARLIER THAN TWENTY-FOUR MONTHS AFTER SUCH ORDER IS ISSUED, LAST MODIFIED OR LAST ADJUSTED WITHOUT FURTHER APPLICATION OF ANY PARTY. ALL PARTIES WILL RECEIVE NOTICE OF ADJUSTMENT FINDINGS. (3) WHERE ANY PARTY FAILS TO PROVIDE, AND UPDATE UPON ANY CHANGE, THE SUPPORT COLLECTION UNIT WITH A CURRENT ADDRESS TO WHICH AN ADJUSTED ORDER CAN BE SENT, AS REQUIRED BY SECTION 443 OF THE FAMILY COURT ACT, THE SUPPORT OBLIGATION AMOUNT CONTAINED THEREIN SHALL BECOME DUE AND OWING ON THE DATE THE FIRST PAYMENT IS DUE UNDER THE TERMS OF THE ORDER OF SUPPORT WHICH WAS REVIEWED AND ADJUSTED OCCURRING ON OR AFTER THE EFFECTIVE DATE OF THE ORDER REGARDLESS OF WHETHER OR NOT THE PARTY HAS RECEIVED A COPY OF THE ADJUSTED ORDER. NOTE: EACH PARTY HAS A RIGHT TO SEEK A MODIFICATION OF THE CHILD SUPPORT ORDER UPON A SHOWING OF: (I) A SUBSTANTIAL CHANGE IN CIRCUMSTANCES; OR (II) THAT THREE YEARS HAVE PASSED SINCE THE ORDER WAS ENTERED, LAST MODIFIED OR ADJUSTED; OR (III) THERE HAS BEEN A CHANGE IN EITHER PARTY’S GROSS INCOME BY FIFTEEN PERCENT OR MORE SINCE THE ORDER WAS ENTERED, LAST MODIFIED, OR ADJUSTED; HOWEVER, IF THE PARTIES HAVE SPECIFICALLY OPTED OUT OF SUBPARAGRAPH (II) OR (III) OF THIS PARAGRAPH IN A VALIDLY EXECUTED AGREEMENT OR STIPULATION, THEN THAT BASIS TO SEEK MODIFICATION DOES NOT APPLY. Dated: January 18, 2023