Mara Rubin, Respondent, v Anthony Della Salla, Appellant. Mara Rubin, Appellant, v Anthony Della Salla, Respondent.
Supreme Court, Appellate Division, First Department, New York
April 18, 2013
964 N.Y.S.2d 41
OPINION OF THE COURT
Richter, J.
In this appeal, we are asked to decide whether a parent who has primary physical custody of a child in a shared custody arrangement where the time is not equally divided can be ordered to pay child support to the other parent. We conclude that based on the plain language of the
Plaintiff Mara Rubin (the mother) and defendant Anthony Della Salla (the father) are the unmarried parents of a nine-year-old son. The mother graduated from college with a degree in speech pathology and child development. After college, she worked as a paralegal, and then attended law school for two years. She dropped out of law school and worked in the real estate field for six years. She married in 1995, had a daughter in 1997 and was subsequently divorced. The father attended college on a football scholarship and studied finance and real estate. After college, he entered the insurance field and became a successful businessman, founding and owning a title insurance company. He was married for 22 years and has three grown children. His marriage ended in divorce in 1995.
The parties, who never married, met in the early 1990s and started their relationship as platonic friends. They became romantically involved in 1998, but did not move in together. In November 2003, the mother gave birth to the couple's son. After the child was born, the mother and father continued to live separately. The mother lived with the child and her daughter in an apartment on Manhattan's Upper East Side. The father had an apartment in midtown Manhattan and a house in New Jersey.
The parties' relationship ended in 2007. Although the child lived with his mother, he continued to spend time with his father. In the beginning of 2007, the father met his current girlfriend, and by that fall, they were in a committed relationship. The time the father spent with his son progressively increased after he began his relationship with his girlfriend. In May 2008, the parties agreed that the child would reside with
At about the same time, school officials informed the father that the mother was habitually late in getting the child to school. The father proposed that he take the child to school every day, and the mother agreed. Each morning thereafter, except when traveling on business, the father would pick his son up from the mother's apartment and timely transport him to school. During the 2008-2009 school year, the child spent most weekends with his father, as well as Thanksgiving, Christmas and nine days of his spring break. The father told the child that he and his girlfriend were expecting a baby, and their daughter was born in April 2009. After the daughter was born, the father significantly decreased his work travel and was available to spend more time with his son.
Despite her college degree and experience in real estate, the mother has not been employed since 2001. Although she claims that the father demanded that she not work, she provides no clear reason for her failure to find employment after the relationship ended in 2007. Nor has the court below made any finding that the mother is physically or mentally incapable of working.
In April 2009, the mother commenced this action seeking sole legal and residential custody of the child, and an order compelling the father to pay child support.1 The father also sought primary custody of the child. On May 27, 2011, after a 10-day trial, the court rendered its decision on custody, and an order was entered on July 19, 2011. The court awarded primary physical custody to the father during the school year, with the mother having parenting time on alternate weekends (from Friday after school to Monday morning) and every Thursday overnight. During the summer, the schedule was reversed and the child would live primarily with the mother, but would spend Thursday
The mother appeals from the custody order, arguing that the court erred in changing the parties' existing custodial arrangement. Custody disputes are resolved based upon a determination of the child's best interests, made after review of the totality of the circumstances (Eschbach v Eschbach, 56 NY2d 167, 171-172 [1982]). Primary among such considerations are the ability to provide for the child's emotional and intellectual development, the quality of the home environment and the parental guidance provided (Matter of Louise E.S. v W. Stephen S., 64 NY2d 946, 947 [1985]). In reviewing custody issues, deference is to be accorded to the determination rendered by the factfinder, unless it lacks a sound and substantial basis in the record (Matter of David J.B. v Monique H., 52 AD3d 414, 415 [1st Dept 2008]).
Guided by these principles, we find that the trial court fashioned an appropriately tailored schedule that enables the child to benefit from both the stability and structure given by the father and the maternal nurturing and affection provided by the mother. Although the mother is warm and loving with the child, the evidence at trial showed that her life is in a constant state of turmoil. She lacks appropriate boundaries, has made questionable choices in her interpersonal relationships, is often overwhelmed by routine stress, and has had repeated problems in getting the child to school on time. These factors support the trial court's view that the father should be the primary custodial parent during the school year, when the child, who has learning disabilities, most needs structure and stability.
The record also provides a sound basis for the trial court's determination that the father should have decision-making authority over educational and medical issues. With respect to education, the mother has failed to get the child to school on time, did not arrange for a tutor in a timely fashion and has increasingly failed to follow through on important educational issues. As for health matters, the mother neglected to get dental
Following the custody decision, the father moved for summary judgment dismissing the mother's cause of action for child support. The father argued that, by the terms of the custody order, he was the custodial parent because the child would spend the majority of the year with him. Thus, the father argued that, as a matter of law, the court could not order him to pay child support to the mother, the noncustodial parent. The father's motion included a calendar covering July 2011 to June 2012, which showed that, as per the custody decision, the father had 204 overnights with the child, and the mother had 161. A similar analysis was done for the July 2012 to June 2013 time period, showing 206 overnights with the father and 159 with the mother. These custodial periods equate to the child being with the father 56% of the time and with the mother 44% of the time.
In her response, the mother did not challenge the father's calculation of the number of overnights each parent had with the child. In fact, she conceded that the child would reside with the father "most of the time," that the father was the "de-facto custodial parent," and that she may not be the "custodial parent" for purposes of the
In an order entered March 8, 2012, the court denied the father's summary judgment motion, finding that an award of child support to the mother was not precluded. The court reasoned that because the parties had "parallel legal custody" of their son and both spent some time with the child, it was impossible to say, as a matter of law, that the father is the custodial parent for child support purposes. The court also focused on the disparity between the parents' financial circum-
The father appeals from the denial of his motion for summary judgment. We reverse, and hold that under the current child support structure enacted by the legislature, the father, as the custodial parent, cannot be directed to pay child support to the mother, the noncustodial parent. The
Prior to the
The
Under the
Despite the clear language of the
The Court unmistakably held that the
To be sure, the Court in Bast recognized that there are "practical challenges" in applying the
Courts have uniformly followed Bast, finding that where parents have unequal residential time with a child, the party with the greater amount of time is the custodial parent for
Here, given the schedule set by the court's custody decision, there is no question that the father has physical custody of the child for a majority of the time and should be considered the custodial parent for child support purposes. Based on the custody order, for the July 2012 to June 2013 time period, the child will spend 206 overnights with the father compared to 159 with the mother. Thus, the child will be with the father for a majority of the time (56%), and with the mother a minority of the time (44%). The extra 47 days the child spends with the father translates into nearly 30% more than the mother's time. Put another way, the child is with the father approximately 130% of the time he is with the mother. The great disparity in overnights here—56% to 44%—stands in marked contrast to the cases cited by the mother where the parents have equal, or essentially equal, custodial time (see e.g. Barr v Cannata, 57 AD3d 813 [2d Dept 2008]; Matter of Carlino v Carlino, 277 AD2d 897 [4th Dept 2000]; Baraby v Baraby, 250 AD2d at 201).
The court below ignored its own custody schedule when it stated that the parents here share "very nearly equal" physical
This approach was soundly rejected in Matter of Somerville v Somerville (5 AD3d 878 [3d Dept 2004]). In that case, the child spent the majority of custodial time each week with his mother, and the father was ordered to pay child support. The father appealed, claiming that he should be considered the custodial parent because he had physical custody of the child during most of her "waking hours." The father argued that more weight should be given to daytime than to nighttime hours because a child needs less parental care during the time the child is sleeping. The court denied the father's objections to the child support order, finding his argument "patently absurd and . . . entitled to no serious consideration" (5 AD3d at 880; see also Matter of Joleene D.R. v Robert J.W., 15 Misc 3d 1148[A], 2007 NY Slip Op 51201[U] [Fam Ct, Oswego County 2007] [rejecting claim that the court should give less weight to sleeping time]). We reach the same result here and reject the counting of waking hours as a method of determining who is the custodial parent. Although the Court in Bast did not elaborate on what constitutes a "majority of time," we believe that the number of overnights, not the number of waking hours, is the most practical and workable approach. In Smith v Smith (97 AD3d 923 [2012]), a case directly on point, the Third Department endorsed the use of overnights. In that case, during the school year, the children were with their father 18 out of every 28 nights, and with their mother the remaining 10 nights. For the summer, school recesses and holidays, the parents shared equal parenting time. Despite the fact that the father had the children for the majority of time, the trial court nevertheless designated him the noncustodial parent by virtue of his greater income, and directed him to pay child support. The Third Department reversed that determination, finding that the trial court's order violated Bast v Rossoff. The court held that
There are sound policy reasons why calculating the waking hours spent with each parent should not be the method used to determine who is the custodial parent. Allowing a parent to receive child support based on the number of daytime hours spent with the child bears no logical relation to the purpose behind child support awards, i.e., to assist a custodial parent in providing the child with shelter, food and clothing (see e.g. Higgins v Higgins, 50 AD3d 852 [2d Dept 2008] [food, clothing and shelter costs are inherent to the basic child support obligation]). Furthermore, because a child's activities are subject to constant change, the number of hours spent with each parent becomes a moving target. Outside of school hours, a child may participate in after-school activities, spend time with a child care giver, be enrolled in tutoring, or attend summer camp. During those times, the child may not be with either parent. The child's activities may vary day to day and will change as the child ages, unnecessarily creating the need to recalculate the parties' parenting time and possibly modify the custodial parent designation. Moreover, the use of this type of counting approach could also lead parents to keep their children out of camp or other activities simply to manipulate their time spent with the child so as to ensure that they are designated the "custodial parent" (see Bast v Rossoff, 91 NY2d at 732 [rejecting proportional offset formula because it has undesirable potential of encouraging parents to keep a stopwatch on visitation]). An hour-by-hour analysis of custodial time is just not workable and would run afoul of the "greater uniformity [and] predictability" the
The dissent misconstrues the reality of the motion court's custody schedule, stating that the child does not spend significantly more time with the father. In fact, as noted above, the father has 56% of time with the child compared to 44% for the mother—an almost 30% difference. Thus, the child spends significantly more time with the father, making the father the custodial parent for child support purposes. The dissent's reliance upon Redder v Redder (17 AD3d 10 [3d Dept 2005]) is
In justifying its departure from the
In finding that the father could be considered the noncustodial parent, the motion court improperly focused on the parties' financial circumstances rather than their custodial status. In doing so, the court endorsed an approach where the determination of the custodial parent is based not on whom the child spends the majority of the time with, but instead on which parent has the lesser monetary means. No matter how well-intentioned the court may have been, neither the
The dissent ratifies the motion court's approach, concluding that courts have the discretion to alter the methodology of the
There is no support for the mother's argument that in shared custody cases, a court has the discretion to determine the custodial parent based on what is "just" and "appropriate." The exercise of judicial discretion in child support awards is narrowly circumscribed, and the
Contrary to the mother's view, these limited exceptions are inapplicable to the situation here. They merely permit a court to reduce or eliminate the child support obligation of a noncustodial parent who may be financially burdened by the presumptive amount of child support (see e.g. Gainey v Gainey, 303 AD2d at 630; Carlino v Carlino, 277 AD2d at 898). They do not vest the court with discretion to ignore the statutory scheme and direct that a custodial parent pay, rather than receive, child support.
In reaching its decision, the dissent speculates that without an award of child support to the mother, the child here would live "in or near poverty" during the time he spends with his mother. We need not analyze the parties' financial circumstances because the question of who is the custodial parent here turns
The mother's reliance on statutory and case law from other states cannot guide our decision here. That the mother might have fared better under a different state's law has no bearing on the issue before us. As noted in Bast v Rossoff, New York's legislature expressly considered, and rejected, the types of child support methodology the mother advocates (see Bast, 91 NY2d at 732 [observing that the proportional offset formula is currently used by other states only because the legislatures of those states expressly adopted it]).
Although the dissent claims otherwise, the approach it advocates would allow a court to abandon the
Acosta, J. (dissenting in part). I respectfully dissent from the dismissal of the mother's cause of action for child support because the majority's rigid application of the statute sacrifices
Although the basic scheme outlined by the majority applies in the majority of cases and provides uniformity of child support awards (see Holterman v Holterman, 3 NY3d 1, 9 [2004]; Matter of Dutchess County Dept. of Social Servs. v Day, 96 NY2d 149 [2001] [uniformity of child support awards a paramount purpose in enacting the
"had among its objectives the assurance that both parents would contribute to the support of the children, and that the children would not 'unfairly bear the economic burden of parental separation' (Governor's Program Bill Mem, Bill Jacket, L 1989, ch 567, at 1). Emphasis was to shift 'from a balancing of the expressed needs of the child and the income available to the parents after expenses to the total income available to the parents and the standard of living that should be shared with the child' (Reichler and Lefcourt, [62] NY St BJ [36,] 44 [Feb. 1990]; see also, Governor's Approval Mem, 1989 NY Legis Ann, at 250 ['children will share in the economic status of both their parents'])" (Matter of Cassano v Cassano, 85 NY2d 649, 652 [1995] [emphasis added]).
This approach in cases that do not fit the "mold" also seems consistent with language in Bast v Rossoff (91 NY2d 723, 728 [1998]), where the Court of Appeals, while addressing the ap-
This is one of those rare cases. Defendant father, who has custody 56% of the time, has assets valued at approximately $20 million dollars. By comparison, the mother who is 49 years old and has not worked since 2001, supports herself by child support payments of $5,000 per month by the defendant pursuant to a 2009 pendente lite order, and an additional $1,000 by the father of her daughter.1 Indeed, her net worth statements show that she had a zero monthly income in 2009 prior to the pendente lite order. Given today's economy, finding a job after being out of the work force for over a decade will be very difficult notwithstanding her college degree and two years of law school. Even more difficult perhaps is finding a suitable apartment on income of $1,000 a month. Thus, a strict application of the
In the end, whether certain provisions of the statute were arguably unfair to the husband in Holterman is really beside the point because the children did not bear the consequences of that unfairness (3 NY3d at 10 [the aim of
Friedman, J.P., Renwick and Román, JJ., concur with Richter, J; Acosta, J., dissents in part in a separate opinion.
Order,