Aрpeal from a judgment of the Supreme Court (Relihan, Jr., J.), entered January 8, 2003 in Tompkins County, which, inter alia, modified plaintiffs child support obligations.
The parties were married in December 1988 and are the pаrents of a son born in 1991. They separated in January 2001, agreeing to a shared custodial arrangement whereby the child alternates between his parents’ homes on a weekly basis, which has apparеntly been successful. In March 2001, defendant, the mother, commenced a proceeding in Family Court seeking child support and maintenance. It is undisputed that, during the marriage, the parties’ primary source of income was a trust fund created solely from plaintiff’s proceeds from a medical malpractice action arising from surgery in 1978 in which his spinal cord was negligently severed causing quadriplegia.
Although the parties’ income tax return reflects that their combined income in 2000 was $55,493, a Support Magistrate, in an October 2001 decision and order, calculated defendant’s 2000 income as $15,600, plaintiffs 2000 income аs $127,172.48, i.e., 100% of the principal and interest which plaintiff drew from the trust in 2000, and found a total combined parental income of $142,772, with 89% attributable to plaintiff. After considering the statutory factors contained in Family Ct Act § 413 (1) (f) (see Domestic Relations Law § 240 [1-b] [f]) and articulating justification for a lower child support obligation, the Support Magistrate capped plaintiff’s income at $80,000 and ordered him to pay $1,133.33 in monthly child supрort and $2,000 in monthly nondurational maintenance, provide the child with medical insurance and pay 89% of the child’s uninsured medical and day care expenses. Plaintiff filed written objections to that determination and Family Court, by order dated November 20, 2001, modified the Support Magistrate’s order only to the extent of limiting maintenance to five years. The Family Court order was not appealed by either party. In September 2001, before the completion of the foregoing Family Court proceedings, plaintiff commenced this action for divorce in Supreme Court.
In lieu of a trial in Supreme Court, the parties aрparently agreed to permit the court to determine all disputed issues in the matrimonial action, including modification of child support and maintenance, based on a document dated October 4, 2002 entitled “Joint Proposed Findings of Fact” (hereinafter the stipulation), which included facts upon which the parties agreed and disagreed. Appended to the stipulation were, among other things, Family Court’s dеcision and order, the Support Magistrate’s findings of fact, decision and order, a transcript of the hearing before the Support Magistrate, updated statements of
By decision dated October 17, 2002, Supreme Court, among other things, granted the parties a divorce, terminated plaintiffs maintenance payments and annulled all maintenance arrears which had accrued. Finding that defendant earned upwards of $17,000 in 2001 but without making any determination as to the amount of plaintiffs incоme or expressly finding a change in circumstances, the court ordered that, effective November 2002, plaintiff’s monthly child support would be reduced to $750 stating, “This amount will produce a ‘self-support reserve’ level of monthly payments to assist defendant in her care and custody of the parties’ son.” The court also directed plaintiff to establish a trust account for the benefit of the child in the amount of $90,000 from which plaintiff shall draw his child support payments, to maintain health insurance coverage on the child, to share equally the cost of uncovered medical treatment, and to pay $2,000 of defendant’s counsel fees. Only plaintiff has appealed from the ensuing judgment, challenging the modified child support obligation and the award of counsel fees.
Initially, we reject plaintiffs contention that hе is not obligated to pay child support because he shares equal custody of the child with defendant. It is well settled that “[sjhared custody arrangements do not alter the scope and methodology оf the [Child Support Standards Act]” (Bast v Rossoff,
We find merit, however, in plaintiffs assertion that Supreme Court’s calculation of his child support obligation was in error, but for reasons other than those argued by plaintiff. Either party may seek to modify an existing order of child support or maintenance upon a showing of a substantial change in circumstance (see Domestic Relations Law § 236 [B] [9]). “It is the burden of the mоving party to establish the change in circumstance warranting the modification” (Rosen v Rosen,
It is clear, however, that Supreme Court erred in calculating plaintiffs new child support obligation without any determination of his income or explanation of why it did not utilize the formula required by the Child Supрort Standards Act (see Domestic Relations Law § 240 [1-b] [c]). “The [Child Support Standards Act] formula must be applied in all but two situations. The first occurs ‘where the court determines that the noncustodial parent’s pro rata share of thе basic child support obligation is “unjust or inappropriate” based on consideration of the ten factors set forth in [Domestic Relations Law § 240 (1-b) (f)]’. . . . The second situation arises where the computation of the basic child support obligation reduces the noncustodial parent’s income below the applicable poverty level or self-support reserve” (Matter of Cary [Mahady] v Megerell,
With few exceptions, the income of the parties, if any, is significant to a court’s calculation of child support (see Domestic Relations Law § 240 [1-b] [k]). Income can come in many forms and, if necessary, may be imputed by the court (Domestic Relations Law § 240 [1-b] [b] [5]). A party’s interest in a trust may be considered by the court in making child support determinations (see Domestic Relations Law § 240 [1-b] [b] [5] [iv]; [e];
We also note that if, on remittal, Supreme Court concludes that plaintiffs pro rata share of the parties’ basic child support obligation calculated pursuant to Domestiс Relations Law § 240 (1-b) (f) is “unjust or inappropriate” (Domestic Relations Law § 240 [1-b] [f]), plaintiff cannot be ordered to pay any part of the child’s future reasonable medical expenses not coverеd by insurance (see Gentner v Gentner,
We have considered plaintiffs remaining contentions and find that they are either unpreserved for appellate review or without merit. In the interim, we will tеmporarily continue the existing judgment so as to preserve the status quo, pending Supreme Court’s immediate reconsideration of plaintiffs child support obligation.
Crew III, J.P., Peters, Mugglin and Lahtinen, JJ., concur. Ordered that the judgment is modified, without costs, by reversing so much thereof as modified plaintiffs child support obligation and awarded defendant counsel fees; matter remitted to the Supreme Court for further procеedings not inconsistent with this Court’s decision, and pending further order of the Supreme Court, the judgment appealed from shall remain in effect as a temporary judgment; and, as so modified, affirmed.
Notes
. It appears that at the time the trust was funded—in the late 1980s—the principal was in excess of one million dollars. Initially, the parties were able to live more than comfortably off the income without depleting a majоr portion of the principal. During the years leading up to the parties’ separation, however, the principal was rapidly depleted due to the parties’ lavish lifestyle and poor stock market conditions to the point that the principal was reduced to $498,604 by August 2001 and to approximately $300,000 by October 2002.
. Notably, the self-support reserve for 2001—using 2001 federal guidelines—is $11,596.50 or $966.38 per month (see Bemis v Bemis,
. Thus, we disagreе with plaintiff that his income should be calculated solely on his trust income. We also disagree, however, with defendant that 100% of plaintiffs draw from the trust is necessarily income within the meaning of Domestic Relations Law § 240 (1-b) (b) (5), as consideration should be given to, among other things, the rapid decline and the nonrecurring nature of the principal.