Burke v. BurkeBurke v. Burke
Appeal from an order of the Family Court of Tompkins County (Barrett, J.), entered January 9, 1997, which granted petitioner’s application, in a proceeding pursuant to Family Court Act article 4, for an order of child support.
Petitioner and respondent are the biolоgical parents of a daughter born in 1990. The parties separated in 1994 and entered into a stipulation before Family Court in May 1996 providing for joint custody of the child. Insofar as is relevant to this appeal, the stipulation provided that respondent would have the child alternating weekends and every Wednesday from the time the child left school until her return there the following morning. Holidays and corresponding school breaks were evenly split, with respondent receiving the child for two weeks during the summer, in addition to dropping her off at school three or four days per week.
A temporary order of support was entered in July 1996 and a fact-finding hearing was scheduled for October 1996. At the conclusion of the hearing that followed, at which petitioner and respondent testified as to their respeсtive financial status and time spent with the minor child, the Hearing Examiner concluded that respondent had custody of the minor child 40% of the timе and, relying upon this Court’s prior decision in Matter of Holmes v Holmes (
As a starting point, we agree with petitioner that respondent’s “custodiаl time” with the minor child was incorrectly computed and that she is the de facto custodial parent. The
As to the issue of the parties’ respective obligations for the child’s unreimbursed hеalth care expenses, respondent concedes that he is responsible for paying such expenses in the same proportion as his income is to the combined parental income. Although the Hearing Examiner’s decision, read literally, requires petitioner to bear 100% of such costs, it appears that this was the result of a typographical error.
Turning to the issue of child carе expenses, the Hearing Examiner directed that “neither party may claim reimbursement for child care expense under this [o]rder for any care provided over the reasonable objection of the other party or when the other party or a suitable relative [is] willing and reasonably available to provide such care”. Although respondent again concedes that he is requirеd to pay his proportional share of this expense, he finds no error in the Hearing Examiner’s decision to essentially make one party the arbiter of what constitutes reasonable child care expenses when the child is in the
Although a plain reading of Family Court Act § 413 (1) (c) (4) reveals that the Family Court indeed is vested with the authority to “determine reasonable child care expenses”, this simply is not a task that may be prospectively delegated to the parties. In the event that respondent believes thаt petitioner is incurring unreasonable child care expenses, his remedy is to commence a proceeding to modify his obligаtions in this regard (cf., Matter of Bruder v Aggen,
Cardona, P. J., Mercure, White and Spain, JJ., concur. Ordered that the order is modified, on the law, without costs, by reversing so much therеof as (1) deemed petitioner and respondent to be simultaneously custodial and noncustodial parents, (2) ordered that respondent pay child support in the amount of $119 per month, (3) ordered that petitioner bear 100% of the minor child’s unreimbursed health care expenses and child care expenses, and (4) ordered that “neither party may claim reimbursement for child care expеnses under [such order] for any care provided over the reasonable objection of the other party or when the othеr party or a suitable relative [is] willing and reasonably available to provide such care”; matter remitted to the Family Court of Tompkins County for further proceedings not inconsistent with this Court’s decision; and, as so modified, affirmed.
Notes
. As noted previously, respondent has the child two weekends per month or 48 days, plus an additional 8 days for the four extra weekends per year (respondent was to have possession of the child on the first, third and fifth weekend of each month), plus 52 Wednesday evenings, plus 10 days for summer vacation (14 days minus two Wednesdаy evenings and one weekend), for a total of 118 days, which results in respondent having possession of the child 32% of the time. Even adding in the 7 hours thаt respondent gains during each 14-day cycle (representing time spent with the child on the days that he takes her to school), this at best gаins respondent a credit for an additional “overnight” each month for a total of 130 days per year, which gives respondent possession of the child approximately 35% of the time.
. In this regard, the record does not demonstrate that respondent incurred any extraordinary expenses associated with the child’s extended visitations with him (see, Family Ct Act § 413 [1] [f] [9] [ii]).