State of New York
Supreme Court : County of Monroe

- against -

Index No. 91/4274

ANDREW V. SIRACUSE, J.

This case comes before the court on remittitur. The parties were divorced in 1989, and the decree of divorce set child support for the parties' two children at $125 per week for the first two years after the divorce and $100 per week thereafter. (A small additional clothing allowance was to be paid annually by the defendant.) Approximately ten years later the plaintiff brought an action seeking an upward modification of support; this court found no unanticipated changes in the parties' incomes or financial situations, and therefore denied her application.

As the divorce decree predated September 15, 1989, the effective date of the Child Support Standards Act, Ms. Jourdan then applied to the Child Support Enforcement Unit for a one-time review of child support obligations, as permitted by Domestic Relations Law § 240 (4), as amended by L 1997, c 398. The Hearing Examiner appointed to review the case raised the support amount from $100 to $325 a week. Mr. Nettleton immediately filed objections to this sum.

In an earlier decision on his objections, reported at 179 Misc 2d 531, this court had held that the one-time review, coming so soon after the court's denial of a motion to change the support amount, was barred by the doctrine of res judicata. The Appellate Division did not agree, and remitted the case for a determination of the validity of Mr. Nettleton's objections. It is to the substance of those objections that the court now must turn.

Before doing so, however, there are two procedural issues that require resolution. Both are raised by the County of Monroe, which in this case represents Ms. Jourdan. The County maintains that Mr. Nettleton is limited to those matters raised in his initial objections, made in 1998, and that the court may not address matters not in those papers. Secondly, the County argues that an evidentiary hearing, with opportunity for document disclosure and (presumably) other discovery, is mandated by the statute. Thus, the County argued at Special Term that this court may not act upon the objections without such a hearing.

The court disagrees with both of these contentions. It is certainly true that the court is required to address the relationship between the parties as of the time of the Hearing Examiner's decision, in 1998. This does not mean, however, that Mr. Nettleton cannot now raise arguments that were available to him at that time but which were omitted from his papers. Any new matters raised in the papers submitted in connection with the present proceeding may be considered as if they were contained in supplementary or reply papers, just as they would in any other motion.

The second contention is more weighty, and no court appears to have addressed it in connection either with the instant provision or with DRL § 240-c, a parallel section. The statute shows no ambiguity:

If specific written objections are submitted by either party or by the support collection unit, a hearing shall be scheduled by the court on notice to the parties and the support collection unit, who then shall have the right to be heard by the court and to offer evidence in support of or in opposition to adjustment of the support order. (DRL § 240 [4] [1] [a])

In certain cases, though, including the present one, a fact-finding hearing is unnecessary. The objector is not limited to challenging the facts as found by the examiner; he or she is entitled by statute to bring "specific written objections to *** [the adjustment] finding and proposed order" (DRL § 240 [4]). While objections to findings must be addressed through a hearing or other fact-finding process, objections to the order itself would speak to the interpretation of the law as applied to those facts. If the facts are not in dispute a hearing would be unnecessary.

The County's insistence on a hearing in all cases can have one of two justifications: either the objector is limited to a factual challenge, and the courts is consequently powerless to review the discretion exercised by the Hearing Examiner once the facts are admitted; or the court has the same power to establish support obligations pursuant to the Child Support Standards Act as it would in an application de novo, but that it must conduct an evidentiary hearing even when the only issues are the application of those standards. Neither theory is palatable. The second is an obvious waste of judicial resources, while the first represents an extraordinary removal of the power to determine support levels from the courts to an administrative body. This is a result which the legislature surely cannot have intended. Any limitation on those powers affects the constitutional mandate of the courts as well as the objector's right to obtain review of both the finding of the examiner and the proposed order, and one would expect such a limitation to be explicitly stated in the legislation. Not only is the amendment silent on this point; no reference to the reviewing court's powers can be found in either the Legislative or the Executive memorandum in its support. It cannot be supposed that either branch intended to restrict the court's powers by implication.

This court is charged by the Appellate Division to hear the merits of the objections made by defendant, and the statute provides that if the court finds the objections meritorious it shall "recalculate or readjust the proposed adjusted order accordingly" (DRL § 240 [4] [1] [c]). It is the court's holding that this language authorizes the court to address all the factors that must be considered under DRL § 240 (1-b).

There is no need for a hearing in the present case, because there are no factual issues between the parties. The Hearing Examiner based his decision on tax returns, which neither litigant argues are inaccurate. Mr. Nettleton argues that the salary figure used by the examiner was inflated by $13,239, because it included a one-time severance pay package from his prior employer. This claim is not seriously refuted by the county. He also claims that the needs of his own children by his present wife will not be met because the amount of money available for them will be significantly less than that available to his children by Ms. Jourdan (DRL § 240 [1-b] [8]). This is strictly a matter of the application of statutory child support standards to the figures submitted.

Mr. Nettleton wants to raise, in addition, the contribution of a supposed other adult living with Ms. Jourdan and contributing to her support and that of the children. If this were relevant it would indeed need to be addressed through a hearing. In this case, however, Mr. Nettleton has offered nothing more than a suspicion that Ms. Jourdan has additional income provided through gifts from an unrelated friend with no legal obligation to support the two children concerned. Imputation of such income is discretionary (DRL § 240 [1-b] [b] [5] [iv] [D]), and the court cannot see any basis for its inclusion here.

Certainly the severance pay, as a one-time payment, must be excluded as a basis for ongoing support. A portion of it should, however, be allocated to child support, by analogy to DRL § 240 (1-b) (e). This payment was $13239; subtracting $789 for FICA leaves $12450, and 25 percent of this is $3113. (All figures have been rounded to the nearest dollar.)

Ms. Jourdan's adjusted gross income in 1997 was $50,278. After subtracting FICA of $3221 her income was $47,057, before child support, for herself and two children. Mr. Nettleton, who filed jointly with his wife, listed 1997 income of $74181. Deducting the $13239 severance pay his ongoing income was $60,942; after deducting FICA paid on that share (about 82 percent of the year's income) of $3602, he had income of $57,340, before child support. Mr. Nettleton and his current wife also have two children. The Hearing Examiner's order requires him to pay $16,900 annually, leaving him $40,440 for himself, his wife, and their two children, while Ms. Jourdan and the parties' children share $63,957.

Mr. Nettleton argues that it is unjust and inappropriate for such an imbalance to result from the application of the child support standards. It is certainly a significant difference, and the court notes that even adding the severance pay back into Mr. Nettleton's income does not eliminate this disparity; nor does excluding that one-time payment combined with a reduction of the support payments to 25 percent of Mr. Nettleton's ongoing income, which results in annual support payments of $14,335. Case law, however, has made it clear that only the most unusual of circumstances will allow the court to set aside an award of support based strict application of the CSSA percentages to the first $80,000 of parental joint income. Above that amount, however, the court has discretion to choose between applying the CSSA percentage and weighing the other factors set out in DRL § 240 (1-b) (f), including

The needs of the children of the non-custodial parent for whom the noncustodial parent is providing support who are not subject to the instant action and whose support has not been deducted from income pursuant to subclause (D) of clause (vii) of subparagraph five of paragraph (b) of this subdivision, and the financial resources of any person obligated to support such children, provided, however, that this factor may apply only if the resources available to support such children are less than the resources available to support the children who are subject to the instant action (DRL § 240 [1-b] [f] [8]).

The combined 1997 income of the two parties was $104,397, and Mr. Nettleton's income represents 55 percent of that sum. Taking a 55 percent share of 25 percent of $80,000, the basic child support obligation, puts Mr. Nettleton's CSSA obligation at $11,000, or $212 a week. The resources available to Ms. Jourdan would then be $58,057, while Mr. Nettleton would be left with $46,340. The court, which has seen no evidence that the needs of the children cannot be met with this sum, thus finds that in view of this disparity any further increase in support would be unjust and inappropriate. The $212 per week should be the limit on Mr. Nettleton's obligation, and the small clothing allowance set forth in the separation agreement should be ended, as it is deemed to have been subsumed in the new support amount.

This matter has been pending for a number of years. It is clear under the statute that the increased support must be payable as of the date the original order would have gone into effect, which is 35 days from the date the proposed order was mailed to the objector. The mailing date was on or about November 17, 1998. The defendant thus owes support in the amount of $212 per week, an increase of $112 per week, retroactive to December 22, 1998. This is a substantial sum--$11,872 as of oral argument, and to it must be added the $3113 for the defendant's one-time severance pay. The court orders that this sum, a total of $14985, is to be paid over the next two years in weekly payments of $144, over and above the weekly child support payments of $212. Ms. Owlette may prepare an order accordingly, without costs or disbursements.

DATED: Rochester, New York

January 8, 2001

Andrew V. Siracuse, J.S.C.

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