ADDITIONAL CASES In the Matter of: D.G.D., Petitioner v. P.R., Respondent DECISION, FINDINGS OF FACT, AND ORDER AFTER TRIAL The parties are divorced and have one child-in-common, H.L.R. (hereinafter “H”). On May 10, 2023, the father, P.R. (hereinafter “Father” or “Mr. R”) filed a downward modification petition against the mother, D.G.D. (hereinafter “Mother” or “Ms. D”). See Petition for Modification of an Order Made by Another Court (R, 05/09/2023), Nassau County Family Court Docket Number F- 03936-23/23A. In his petition, he alleged that since the parties’ divorce documents were issued, three years have passed and Ms. D’s income has increased by fifteen percent or more. See id. He also alleged that in light of Ms. D’s and H’s shared residence with Ms. D’s “romantic partner” and his children, there has been a decrease in H’s portion of daily living expenses. Id. On July 21, 2023, Ms. D filed an upward modification petition against Mr. R. See Cross-Petition for Modification of an Order of Support Made by Another Court (D, 07/20/2023), Nassau County Family Court Docket Number F-03936-23/23B. In her petition, she alleged that since the parties’ divorce documents were issued, three years have passed and Mr. R’s income has increased by considerably more than fifteen percent. The parties engaged in extensive discovery. A resolution could not be reached and the matter was scheduled for trial. On November 27, 2023, a trial in the matter commenced. The parties were sworn and present with retained counsel. Mr. R was represented by Sari Friedman, Esq. (hereinafter “Ms. Friedman”) and Crystal Pannell, Esq. (hereinafter “Ms. Pannell”). Ms. D was represented by Julie Sheldon, Esq. (hereinafter “Ms. Sheldon”) and Allison Grinspoon, Esq. (hereinafter “Ms. Grinspoon”). The Court heard testimony on November 27, 2023, January 16, 2024, January 18, 2024, April 4, 2024, and April 15, 2024. On June 6, 2024, the parties submitted written summations. The Court reserved decision. Having considered the evidence and the parties’ arguments, and having applied such to the law, the Court’s determination follows: THE EVIDENCE TESTIMONIAL EVIDENCE Ms. D’s Testimony Ms. D testified that in January 2011, she married Mr. R. She told the Court that the parties have one child together, H. She stated that during their marriage, the parties lived a luxurious lifestyle. Ms. D testified that Mr. R had a sizeable income, which included deferred compensation, incentives, bonuses, and stocks. She told the Court that Mr. R was a Vice-President at C.S., earning approximately 1.25 million dollars annually. She stated that Mr. R was proud of his achievements and one of his “favorite activities” was to “calculate his net worth.” Ms. D testified that Mr. R considered himself to be more successful than others. She told the Court that before H was born, she worked in marketing, earning approximately $80,000.00 annually. She stated that after H was born, she did some part-time freelance work, but was primarily a stay-at-home mother. She told the Court that the couple filed joint tax returns. Ms. D testified that during their marriage, H “wanted for nothing.” She told the Court that the family was never confined to a budget. She stated that the family dined regularly at restaurants. Ms. D testified that H was enrolled in numerous extracurricular activities such as dance, tennis and gymnastics. She told the Court that H attended P. Country Day School and P Summer Day Camp. She stated that H had scores of new designer clothes, such as Burberry, and asserted that Mr. R refused to permit H to wear “hand-me-downs.” She told the Court that she and Mr. R threw H lavish birthday parties with extravagant cakes. Ms. D testified that in March 2018, when H was three years old, she commenced an action for divorce against Mr. R. She told the Court that after she filed, Mr. R severed most of her access to the marital money, cancelling one of her credit cards and reducing the credit line on the other. She stated that was when Mr. R stopped working for C.S. and “no money was coming in.” Ms. D testified that Mr. R was not paying towards H’s support so she did her best to use whatever funds she could acquire to support H. She told the Court that she and H went to live with her parents until Mr. R moved out of the marital residence. Ms. D testified that during the divorce, she had the opportunity to see Mr. R’s financial documentation. She told the Court that she learned that he became reemployed. She stated that she discovered that Mr. R got an apartment that cost more than the monthly mortgage on their marital home and that he purchased a Porche. Ms. D testified that she is married to J.D. and they live in a 2,400 square foot ranch style home with three bedrooms and three and a half bathrooms. She told the Court that she owned the house for eleven years prior to her marriage to Mr. D. She stated that H resides there. Ms. D testified that Mr. D has two children of his own who spend approximately thirty to forty percent of their time at the D residence. She told the Court that Mr. D pays child support for his children and a pro rata share of his children’s add-on expenses. Ms. D testified in 2021 she worked as a media planner. She told the Court that thereafter, she worked as a real estate agent. She elaborated that she has no current listings. Ms. D testified that since August, 2022, she has been employed as a director at DX, a media and advertising company, earning $208,000.00 annually. She told the Court that she is also employed by MN, a company owned by her father, earning $300.00 weekly. She explained that she handles that company’s email marketing. Ms. D testified that pursuant to the parties’ divorce financial agreement, she is entitled to a percentage of Mr. R’s carried interest holdings which he received after his separation from CS. Ms. D acknowledged that she has access to several high-end vehicles which are the property of her father’s company. She told the Court that she uses those vehicles for business purposes while working at MN and she borrows those vehicles for personal use. Ms. D testified that she pays to replenish the gasoline in their tanks. She stated that she sometimes drives H in those vehicles. She elaborated that although her husband has a Jeep Grand Cherokee registered in his name, she has no vehicles registered in her name. Ms. D testified that her father pays for a cellular telephone family plan of which she is a part. She stated that her husband pays for his own cellular telephone and H does not have a cellular telephone. She told the Court that she is authorized to use her parent’s AMEX credit card, which she uses predominantly to take care of her parents’ expenses. She elaborated that she does not use her parents’ AMEX card to make purchases for H. She stated that her father has a medical issue and is apprehensive about flying commercial so when she travels with him, he pays for a private plane to take them. Ms. D testified that when she vacations with her parents, they usually go to Key Largo, where her parents own a dock and a boat which they consider to be their vacation home, or to Bar Harbor, Maine. She told the Court that she recently took trips to Israel and Orlando with H. She stated that when she travels without her father, she typically flies with Jet Blue. She explained that she uses a shared family plan, which accumulates mileage rewards points, so she is able to use those points to pay for some of her trips. Ms. D testified that her financial disclosure affidavit is true and accurate. She told the Court that her family has numerous monthly expenses, including a mortgage, home insurance, real estate taxes, utilities, car insurance, gasoline, household repairs, public transportation, dry cleaning, clothing and cellular telephone fees. She stated that she and her husband pay their expenses from a joint bank account. She elaborated that sometimes she pays for the family’s bills and sometimes her husband pays for the family’s bills. Ms. D testified that the family belongs to three different temples. She explained that one temple charges a reduced rate and is the temple to which she belonged as a child, another temple is the family’s Orthodox temple where they attend religious services, and the third temple is a Reform temple where H attends religious school. She told the Court that Mr. R insists that H attend TS’s religious school and she is required to be a member of the temple in order for H to be enrolled. Ms. D testified that H lives with her thirteen out of every fourteen nights. She told the Court that she pays for H’s daily living expenses. She told the Court that Mr. R covers H’s medical insurance and she covers H’s dental and vision insurance. She stated Court that H has been involved in various extracurricular activities at different times, including tennis, dance, basketball, theater, culinary arts, fashion design, clay and creation, and cello lessons. Ms. D testified that she occasionally incurs child care costs if she is working or going to dinner without H. She told the Court that H goes to camp, which costs approximately $12,330.00 for the summer. Ms. D testified that during their divorce, the parties agreed that Mr. R would pay $5,000.00 monthly towards H’s support. She told the Court that H’s expenses have increased since the divorce and the $5,000.00 monthly child support payments Mr. R contributes are not enough to cover those expenses. She stated that H is nine years old now and wears adult size clothing. Ms. D testified that she has to purchase new clothes and shoes for H on a regular basis. She told the Court that H’s food and toiletries costs have increased, along with her school and extracurricular activities expenses. She stated that in a few years, H will be bat-mitzvahed with many costs associated. She told the Court that she wants H to have and do the same things that her peers in school have and are doing. Ms. D testified that when she settled for $5,000.00 monthly in child support, in her view, it was not enough to comport with H’s lifestyle during the marriage. She told the Court that she agreed to that amount because the divorce proceedings were “an ongoing battle, she was “ready to be done,” and she thought it was “the best [she] could do.” She stated that she decided to settle for that sum because she was offered an all-inclusive child support arrangement. She elaborated that having an “all-in number” relieved her of the burden of attempting to come to mutual decisions with Mr. R about H’s expenses since she finds it difficult to communicate with him. Ms. D testified that at the time the parties reached their 2019 financial agreement, Mr. R’s income was determined to be $200,000.00 annually. She told the Court that Mr. R’s income has increased exponentially since then. She asserted that the Court should impute Mr. R’s wife’s fairly large income to him when calculating Mr. R’s child support obligation. She asked the Court to order an all-inclusive child support arrangement consistent with the structure of the parties’ 2019 agreement. Mr. R’s Testimony Mr. R testified that he is divorced from Ms. D. He told the Court that when he and Ms. D were married, the family lived a modest lifestyle. He stated that the parties dined minimally outside of their home and when they did, they patronized chain restaurants. Mr. R testified that except for designer clothing and gifts from family and friends, H wore clothes from Carter’s and Target. He maintained that most of the marital money was placed into savings. Mr. R conceded that when he got annual bonuses, the family would splurge on a few items. He acknowledged that he leased a Porche during the course of the parties’ marriage, which he purchased after the lease ended, along with their marriage. Mr. R admitted that he belonged to a country club that only permitted male members for which there was a $10,000.00 initiation fee and a yearly fee of $15,000.00 to $17,000.00. Mr. R testified that in 2019, the parties’ signed a financial agreement in which his child support obligation was agreed to be $5,000.00 monthly. He told the Court that he had been working for AIG for one or two months at the time and his salary was determined to be $200,000.00 annually. He elaborated that he had not received any bonuses for that year. He told the Court that Ms. D was not working so her income was imputed to be $60,000.00 annually. He stated that the parties’ combined incomes exceeded the statutory cap and they agreed to deviate from the Child Support Standards Act’s presumptive child support amount. Mr. R testified that the cost of H’s support is less than what he is currently paying towards child support. He maintained that H’s expenses are de minimus, but upon cross-examination, conceded that he does not have a great deal of knowledge about them. He told the Court that he pays for H’s medical insurance through his current wife’s health insurance plan with G. He acknowledged that Ms. D pays for H’s vision and dental insurance. Mr. R testified that he is married to S.S. with whom he resides in a Manhattan rental apartment for which he pays $11,869.00 monthly and $600.00 monthly for utilities. He told the Court that he and Ms. S have a son together. He stated that he and Ms. S went househunting and put a bid on a home. He told the Court that he and Ms. S received a loan for the purchase of a home from WF Bank. Mr. R testified that he and Ms. S filed a joint tax return in 2022 and reported their income to be $1,266,285.00. Mr. R testified that his wife works for G and her 2022 W-2 reflected an income of $682,115.00. He told the Court that his wife earns a base salary, bonuses, stock, dividends, and interest. Mr. R testified that since May 2022, he has worked for NS, earning $215,000.00 annually. He told the Court that there exists a possibility, but not a guarantee, that he will receive a yearly bonus, which is paid to him in February or March of each following year. He elaborated that he does not know if he will receive a 2023 bonus since NS’s performance was poor last year. Mr. R testified that he earns additional income based upon restricted stock, dividends, and interest. He told the Court that he receives carried interest holdings from his separation with CS. He stated that should he stay employed at his current job, he may receive long term incentive awards which are currently worth zero dollars. He explained that the shares will not vest in cash and he does not know how much their value will be if they vest. Mr. R testified that he and Ms. S share a joint checking account and a joint savings account. He told the Court that the two of them have an agreement wherein any earnings, bonuses and restricted stock, dividends and interests acquired prior to their marriage will remain separate property. He stated that base salaries, bonuses received after their marriage, portions of stocks obtained after their marriage, and dividends and interest amounts attributable to earnings after their marriage are placed into their joint accounts. Mr. R testified that he and his wife also maintain individual checking accounts. He told the Court that he and Ms. S do not have access to each other’s individual accounts. He stated that all of his family’s expenses are paid from their marital income within their joint accounts. He told the Court that he pays his credit card bills in full every month. Mr. R testified that he has a full-time nanny that cares for his son and a housekeeper who cleans his apartment three to four times per week. He told the Court that he garages his Porche in Manhattan. He stated that his family takes several vacations a year, some which are cruises. Mr. R testified that he enjoys gambling as a form of entertainment and has traveled to Las Vegas and Atlantic City to partake. He told the Court that sometimes he earns large sums of money gambling, but he mostly breaks even or loses money. He acknowledged that in 2023, he won approximately $50,000.00. He told the Court that because he gambles a few times a year, he belongs to the MGM Gold Status program through which he receives certain perquisites and gifts. Mr. R maintained that Ms. D’s income is much more than what she reported on her financial disclosure affidavit. He told the Court that Ms. D receives a portion of his carried interest holdings from CS.. He stated that Ms. D and her husband receive investment income from PP, a company that derives capital from airport lounge memberships. He asked the Court to impute money, goods and services Ms. D receives from her family to her income, such as the use of luxury vehicles, a “yacht,” travel on private jets, and free cellular telephone usage. He maintained that if the Court considers all of Ms. D’s income sources, the Court will find that Mr. R’s and Ms. D’s incomes are similar. Mr. R asked the Court to render a decision reducing his child support obligation and splitting the parties’ pro rata shares evenly. DOCUMENTARY EVIDENCE Mr. R admitted the parties’ financial agreement, dated July 1, 2019, under Nassau County Supreme Court Index Number 200674/2018, into evidence as Petitioner’s Exhibit 1. Mr. R admitted Ms. D’s 2020 tax return into evidence as Petitioner’s Exhibit 2. Mr. R admitted Ms. D’s 2021 tax return into evidence as Petitioner’s Exhibit 3. Mr. R admitted Ms. D’s mandatory financial disclosure, including her signed and notarized financial disclosure affidavit, dated June 27, 2023, her 2022 joint tax return with her husband, J.D., her 2022 W-2s, and three of her 2023 pay stubs, into evidence as Petitioner’s Exhibit 4. Mr. R admitted Ms. D’s receipts for H’s extracurricular activities and temple membership into evidence as Petitioner’s Exhibit 6. Mr. R admitted Ms. D’s receipts for H’s camp expenses, temple membership, instrument rentals, and extracurricular activities into evidence as Petitioner’s Exhibit 7. Mr. R admitted Ms. D’s deposition transcript, dated August 11, 2023, into evidence as Petitioner’s Exhibit 8. Mr. R admitted Ms. D’s deposition transcript, dated August 16, 2023, into evidence as Petitioner’s Exhibit 9. Mr. R admitted Ms. D’s Our Family Wizard messages to Mr. R regarding H’s travel arrangements into evidence as Petitioner’s Exhibit 12. Mr. R admitted Ms. D’s modification petition into evidence as Petitioner’s Exhibit 13. Mr. R admitted his mandatory financial disclosure, including his signed and notarized financial disclosure affidavit, dated June 27, 2023, three of his 2023 pay stubs, his 2022 joint tax return with his wife, S.S., and his W-2s, into evidence as Petitioner’s Exhibit 15. Mr. R admitted his 2023 C.S./ADP Gross Amounts certification into evidence as Petitioner’s Exhibit 17. Mr. R admitted Ms. ‘s C.O. Bank Mortgage Statement into evidence as Petitioner’s Exhibit 18. Mr. R admitted the parties’ Judgment of Divorce under Nassau County Supreme Court Index Number 200674/2018 as issued by the Honorable Jeffrey A. Goodstein into evidence as Petitioner’s Exhibit 19. Mr. admitted J Air subpoenaed records, dated April 8, 2024, into evidence as Petitioner’s Exhibit 20. Mr. R admitted the parties’ unsigned 2014 tax return into evidence as Petitioner’s Exhibit 22. Mr. R admitted the parties’ unsigned 2015 tax return into evidence as Petitioner’s Exhibit 23. Mr. R admitted the parties’ unsigned 2016 tax return into evidence as Petitioner’s Exhibit 24. Ms. D admitted the parties’ Custody and Parenting Time Stipulation and Agreement, July 1, 2019, into evidence as Respondent’s Exhibit A. Ms. D admitted Mr. R’s Statement of Net Worth, dated 5/30/2019, into evidence as Respondent’s Exhibit E. Ms. D admitted Mr. R’s J.P.M.C., N.A. bank account statement for the time period between May 11, 2023 through June 12, 2023, account number ending 7936, into evidence as Respondent’s Exhibit H. Ms. D admitted Mr. R’s 2022 Total Reward Statement/Outstanding Long Term Incentive Awards (USD) into evidence as Respondent’s Exhibit QQQ. Ms. D admitted Mr. R’s C O bank account statement for the time period between April 1, 2023 through June 30, 2023, account number ending 0085, into evidence as Respondent’s Exhibit TTT. Ms. D admitted Mr. R’s Quarterly Retirement Savings Portfolio Statement for the time period between April 1, 2023 to June 30, 2023 into evidence as Respondent’s Exhibit HHHH. Ms. D admitted Mr. R’s Investment Report for the time period between June 1, 2023 to June 30, 2023 into evidence as Respondent’s Exhibit JJJJ. Ms. D admitted Mr. R’s 2020 tax return into evidence as Respondent’s Exhibit LLLL. Ms. D admitted Mr. R’s 2021 joint tax return with his wife, S.S., and his W-2s into evidence as Respondent’s Exhibit NNNN. Ms. D admitted Mr. R’s deposition transcript, dated August 11, 2023, into evidence as Respondent’s Exhibit PPPP. Ms. D admitted Mr. R’s Uniform Residential Loan Application into evidence as Respondent’s AAAAA. DISCUSSION New York State Family Court Act §451 governs the bases to modify a support order.1 See N.Y. FAM. CT. ACT §451 (McKinney’s 2024). A court may modify a child support order based upon a substantial change in circumstances. See N.Y. FAM. CT. ACT §451(3)(a) (McKinney’s 2024); see also Yaroshevsky v. Yaroshevsky, 219 A.D.3d 609, 611 (2d Dep’t 2023); Good v. Ricardo, 189 A.D.3d 830, 831 (2d Dep’t 2020); O’Donoghue v. O’Donoghue, 214 A.D.3d 876, 877 (2d Dep’t 2023); Cywiak v. Packman, 214 A.D.3d 652, 653 (2d Dep’t 2023); 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); Vetrano v. Vetrano, 177 A.D.3d 890, 891 (2d Dep’t 2019). A court may also modify a child support order where: (1) three years have passed since the order was entered, or last modified or adjusted; or, (2) a party’s gross income changed by at least fifteen per cent since the order was entered, or last modified or adjusted; or, (3) a party’s gross income decreased due to involuntary employment termination and he or she made a good faith effort to find a comparable job.2 See N.Y. FAM. CT. ACT §451(3)(b)(i)(ii) (McKinney’s 2024); see also Srivastava v. Dutta, 220 A.D.3d 949, 951 (2d Dep’t 2023); Castelli, 198 A.D.3d at 753-754; Vetrano, 177 A.D.3d at 892 (2d Dep’t 2019). The relevant time period for the purposes of deciding a modification application is the time frame between when the order sought to be modified was issued and the filing of the modification petition. See O’Donoghue, 214 A.D.3d at 877; see also Cywiak, 214 A.D.3d at 654; 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 established that the parties’ financial agreement was entered in July 2019 and the parties’ divorce judgment was entered in December 2019. The evidence also established that Mr. R filed his downward modification petition in May 2023 and Ms. D filed her upward modification petition in July 2023. Thus, the Court finds that three years have passed since the parties’ last order was entered. Accordingly, the Court has the power to modify the parties’ child support obligations on this basis, if appropriate. See N.Y. FAM. CT. ACT §451(3)(b) (i) (McKinney’s 2024); see also Srivastava, 220 A.D.3d at 951; Yaroshevsky, 219 A.D.3d at 611; Good, 189 A.D.3d at 831. The proof showed that when the parties signed their 2019 financial agreement, Mr. R represented his income to be $200,000.00 annually and Ms. D represented her income to be $59,280.00 annually. Since the parties filed their dueling modification petitions in 2023, the Court finds that using the parties’ 2022 income for calculations purposes is proper. See generally N.Y. FAM. CT. ACT §424-a (McKinney’s 2024). To that end, both parties argued that this Court should impute income to their adversary. A support magistrate is granted considerable discretion when deciding whether or not to impute income to a parent. See N.Y. Fam. Ct. Act §413(1)(b)(5)(iv) (McKinney’s 2024); see also Qazi v. Qazi, 220 A.D.3d 660, 661 (2d Dep’t 2023); Coughlan v. Coughlan, 218 A.D.3d 569, 571 (2d Dep’t 2023); Grace v. Amabile, 181 A.D.3d 602, 604 (2d Dep’t 2020); Kennedy v. Ventimiglia, 73 A.D.3d 1066, 1067 (2d Dep’t 2010). A support magistrate may base imputation on money, goods, or services provided by relatives and friends. See N.Y. Fam. Ct. Act §413(1)(b)(5)(iv) (D) (McKinney’s 2023); see also Coughlan, 218 A.D.3d 5 at 570; Grace, 181 A.D.3d at 604; Gebaide v. Gebaide McGoldrick, 74 A.D.3d 966, 967 (2d Dep’t 2008). When a support magistrate imputes income, there must be a clear record regarding the reasons for such imputation, the imputed income’s source, and the consequent child support calculations. See Qazi, 220 A.D.3d at 661; Pilkington v. Pilkington, 185 A.D.3d 844, 846 (2d Dep’t 2020); Rohme v. Burns, 79 A.D.3d 756, 757 (2d Dep’t 2010); Sena v. Sena, 61 A.D.3d 980, 981 (2d Dep’t 2009). The Court declines to impute income to either party. Both parties are gainfully employed in lucrative positions, and there exist no remarkable factors requiring imputation of income from other sources. See e.g. Davidson v. McLoughlin, 128 A.D.3d 960, 961 (2d Dep’t 2015) (finding support magistrate properly declined to impute live-in boyfriend’s income to mother); Heller v. Heller, 43 A.D.3d 999, 1001 (2d Dep’t 2007) (referee erred in imputing income earned by current spouse); Mcgrath v. Parker 41 A.D.3d 852, 852 (2d Dep’t 2007) (upholding support magistrate’s decision not to impute current spouse’s income); Weber v. Coffey, 230 A.D.2d 865, 865 (2d Dep’t 1996) (improvident exercise of discretion to impute current spouse’s income to father in calculating child support). The evidence established that Mr. R’s 2022 income was $397,583.00 annually3 and Ms. D’s 2022 income was $190,920.00 annually.4 5 Thus, the Court finds that both parties’ incomes have increased by at least fifteen percent since the parties entered into their 2019 financial agreement. Accordingly, the Court has the power to modify the parties’ child support obligations on this basis, if appropriate. See N.Y. FAM. CT. ACT §451(3)(b)(ii) (McKinney’s 2024); see also Assad v. Assad, 200 A.D.3d 831, 834 (2d Dep’t 2021); Khost v. Ciampi, 189 A.D.3d 1409, 1410 (2d Dep’t 2020). Having met the threshold of showing that since the parties’ 2019 financial agreement was entered, three years have passed and the parties’ incomes have increased by fifteen percent or more, the Court now turns to the issue of whether a modification of Mr. R’s child support obligation is necessary and appropriate. The parties’ 2022 combined gross parental income is $588,503.00 annually and the parties’ 2022 combined adjusted parental income is $547,762.39 annually. The parties’ 2022 combined adjusted parental income exceeds the current statutory cap of $183,000.00. After having applied the Child Support Standards Act calculation, Mr. R’s child support obligation up to the statutory cap of $183,000.00 would be $1,762.90 monthly and his child support obligation over the statutory cap for the total amount of the parties’ combined adjusted gross income would be $5,277.00 monthly. Where the parties’ combined gross income exceeds the statutory cap, the Court has discretion to cap the amount of child support ordered, or to determine an amount in excess of the cap based upon the parties’ respective incomes and the Child Support Standards Act §413(1)(f) factors. See N.Y. FAM. CT. ACT §413(c)(3) (McKinney’s 2024); see also §413(1)(f) (McKinney’s 2024); Good, 189 A.D.3d at 831 (2d Dep’t 2020); Pandis v. Lapas, 176 A.D.3d 837, 842 (2d Dep’t 2019); Levin v. Blum, 167 A.D.3d 609, 611 (2d Dep’t 2018). A support magistrate is required to issue a written order setting forth the factors considered and the reasons for his or her departure from the basic child support obligation. See N.Y. FAM. CT. ACT §413(c)(3) (McKinney’s 2024); see also §413(1)(f) (McKinney’s 2024); Goldstein v. Lika, 2024 N.Y. Slip. Op. 02193, at * 1 (2 Dep’t, Apr. 24, 2024), Butta v. Realbuto, 214 A.D.3d 973, 975 (2d Dep’t 2023). In deciding a suitable child support award, a court must “consider the children’s actual needs and the amount required for them to live an appropriate lifestyle.” Hepheastou v. Spaliaras, 201 A.D.3d 793, 795 (2d Dep’t 2022); Pandis, 176 A.D.3d at 842. Such determinations are based upon the unique facts and circumstances of each case. See generally Goldstein, 2024 N.Y. Slip. Op. 02193, at * 1 (child support up to cap where even though one parent’s income “grossly exceeded” income of other parent, child’s needs being met); Surage v. Surage, 224 A.D.3d 860, 862 (2d Dep’t 2024) (difference between parents’ income does not warrant application of statutory percentage over the cap); Srivastava, 220 A.D.3d at 951 (finding support magistrate providently exercised discretion in applying the child support percentage in excess of statutory cap after thorough analysis of parties’ financial situation, including the parties’ considerable income and the child’s needs); Yaroshevsky, 219 A.D.3d at 612 (affirming calculation above statutory cap after thorough analysis of father’s considerable income, disparity between parties’ income and standard of living children would have enjoyed had marriage not dissolved); Butta, 214 A.D.3d at 974 (finding consideration of parties’ income disparity and child’s standard of living did not warrant child support over statutory cap); Monaco v. Monaco, 214 A.D.3d 659, 662-63 (2d Dep’t 2023) (where children living in accordance with marital lifestyle, parties’ divorce agreement and disparity in parties’ income did not warrant piercing the statutory cap); Hepheastou, 201 A.D.3d at 795 (where mother lives rent-free at parents’ house, no child care costs, minimal costs for education and extracurriculars and no extraordinary expenses, appropriate to apply statutory percentage up to cap); Good, 189 A.D.3d at 832-33 (where both parties’ incomes “significantly increased” but children were living appropriate lifestyle with all needs provided, support magistrate erred by modifying obligation beyond what father had already been paying pursuant to stipulation). Based upon the evidence presented, it is illogical to believe that the parties lived a modest lifestyle during the marriage, as Mr. R suggested, since he acknowledged that he was driving a Porche and spending time at a gentleman’s only country club with a substantial initiation fee as well as lofty membership fees. The proof showed that while the parties were married, the household was affluent. The family dined out regularly and partook of private plane travel to and from multiple vacations. H was enrolled in a variety of extracurricular activities, wore designer clothes, attended a premier school and camp, and was the beneficiary of extravagant parties. Although Mr. R was a high wage earner, the parties’ lavish lifestyle was supplemented by Ms. D’s father’s generosity. The proof showed that during their divorce, the parties signed a financial agreement in which Mr. R agreed to pay an all-inclusive sum of $5,000.00 monthly towards H’s living expenses. At the time, the parties’s combined income exceeded the statutory cap and Mr. R’s child support obligation deviated from the Child Support Standards Act. The evidence established that Ms. D lives with H, her husband, and his two children with whom he has substantial visitation, in a nice village of Long Island’s Gold Coast. While Ms. D was only working part-time during the marriage, she is now gainfully employed at two jobs, earning a respectable income. Ms. D’s husband also works and earns a sizeable income. H continues to dine at restaurants, and take trips on private planes, both domestically and abroad. She is enrolled in numerous activities and attends summer camp. H is driven in luxury vehicles and spends time on her grandparents’ boat. In addition to her secular education, H attends religious school and services. The evidence established that Mr. R lives with his wife and their young son. Mr. R is a high wage earner as is his wife. The family has been living in a Manhattan apartment and just purchased a home in an upscale rural area. Mr. R owns a Porche, which he garages in New York City. His family takes trips several times a year. Mr. R goes on gambling excursions to both Las Vegas and Atlantic City. He maintains a special status from at least one casino and he receives perquisites. Mr. R has a housekeeper who services the home three to four times a week and his son has a full time nanny. The evidence failed to show that H has unfairly borne the economic burden of her parent’s separation, or that her needs are not being met. Given all of H’s available amenities through her continued exposure to an opulent lifestyle, it appears that the negotiated amount of child support chosen by the parties is a sufficient amount to sustain her. To that end, the parties’ 2019 financial agreement was fully and thoughtfully negotiated, reached after meaningful and thorough deliberation, and after consultation with counsel. Ms. D’s assertions that she signed the parties’ 2019 financial agreement because the divorce was taking too long and she felt that she needed to move on with her life are unpersuasive. She, herself, acknowledged that “the main reason that [she] went forward” was because she wanted an all-inclusive child support amount to avoid further arguments with Mr. R. Likewise, the evidence failed to show that Mr. R’s current monthly child support obligation exceeds H’s actual needs. Mr. R, himself, admitted during testimony that he is unaware of the actual cost of H’s expenses. In light of the evidence presented, and in its discretion, the Court finds that modifying the parties’ child support order is unnecessary and inappropriate. That is to say, although the Court may modify Mr. R’s child support obligation — either upwardly or downwardly — the Court finds that the proof at trial does not justify modifying Mr. R’s obligation from that which the parties’ consented in their financial agreement. See Good, 189 A.D.3d at 832-33 (finding improper upward modification from parties’ stipulation). Where a child’s needs are being met, a substantial disparity in the parents’ income, standing alone, is insufficient to warrant an automatic modification. See id. Moreover, a generalized claim of a child’s increased needs based upon age or inflation does not sustain an upward modification application.6 See Doscher v. Doscher, 137 A.D.3d 962, 964(2d Dep’t 2016) (insufficient proof of child’s increased expenses for clothing, recreation, and miscellaneous items); see also Labita v. Labita, 147 A.D.2d 535, 536 (2d Dep’t 1989) (upward modification reversed where increased need was based upon rising economy and child support was fixed and not based upon child’s needs). Compare Zucker v. Zucker, 187 A.D.2d 507, 509 (2d Dep’t 1992) (upholding increase in child support where sufficient evidence of increased dollar amounts for music and sports lessons, Hebrew School, Bar Mitzvah lessons and summer camp). Further, it is clear to this Court that Mr. R’s current child support obligation is a required part of the equation to sustain H’s needs. Finally, H’s maternal grandparents’ benevolence has remained unchanged throughout her life. For all of the aforementioned reasons, the Court shall not disturb the parties’ 2019 financial agreement which is satisfactorily covering H’s expenses. Considering the prospect of any future modification petitions, the Court finds worthy of mention that with regards to Ms. D’s application for “all-in” increase of Mr. R’s child support obligation, rather than a combination of basic support and a pro rata share of mandatory add-on expenses, she is not litigating in the correct forum. In her summation, she argued that “[w]hile this Court has the power to enforce or modify the Judgment of Divorce, there is no power conferred to alter or change the parties’ contractual agreement regarding the structure of the child support obligation.” Resp’t's/Cross-Pet’r's Post-Trial Brief, pp. 30-31 (Sheldon/Grinspoon, 06/06/2024), Nassau County Family Court Docket Number F-03936-23/23A & 23B. She is absolutely correct. To that end, the Court knows of no authority, nor was any provided, setting forth that a support magistrate may craft an all-inclusive child support award absent consent. See N.Y. FAM. CT. ACT §§413, 416, 439 (McKinney’s 2024). The same holds true for this Court’s power to order pro rata shares of anything other than child support, health insurance premiums, unreimbursed medical expenses and child care. That is to say, a support magistrate has no jurisdiction to entertain an application for voluntary add-on expenses absent consent. ADJUDGED, that Mr. R failed to meet his burden of establishing that his child support obligation should be downwardly modified; and it is further, ADJUDGED, that Ms. D failed to meet her burden of establishing that Mr. R’s child support obligation should be upwardly modified; and it is therefore, ORDERED that, Mr. R’s downward modification petition is hereby dismissed without prejudice; and it is further, ORDERED that, Ms. D’s upward modification petition is hereby dismissed without prejudice. ATTORNEYS’ FEES APPLICATIONS Should either party wish to pursue attorneys’ fees as against the other, such motion schedule is as follows: Attorneys’ fees motions by August 18, 2023. Opposition papers by August 28, 2023. Reply papers, if any, by August 31, 2023. This constitutes the decision, opinion and order of the Court. 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, STATEISSUED 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 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. 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. 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]: Dated: June 17, 2024
