January 21, 2022
By PetroskeLaw

Hepheastou v. Spaliaras, 2020-08062

The parties were married in May 2013 and have two children.  In June 2016, the plaintiff commenced this action for a divorce and ancillary relief shortly after she moved from the marital residence with the parties’ first child, while she was pregnant, and began residing with her parents.  On March 22, 2017, the parties entered into a stipulation which provided that they would have equal parental access.

After trial, by judgment of divorce, the lower court, among other things, awarded sole residential and legal custody to the plaintiff, awarded the defendant parental access of one weekday per week and alternating weekends, calculated the defendant’s child support obligation to be $3,072 monthly for the two children based upon the parties’ income in excess of the statutory cap, directed the defendant to pay 50% of the health insurance premiums for the children, directed the defendant to pay the sums of $8,356.60 and $114,096 in child support arrears, and awarded the plaintiff counsel fees in the sum of $30,000.

Here, given the frequency of parental access that the defendant enjoyed with the children during the lengthy pendency of this matter, his parental access should be expanded (see Matter of Sanders v. Ballek, 136 AD3d 676, 677-678).  The Second Department determined that the defendant should additionally be awarded parental access from 4:00 p.m. until 8:00 p.m. on alternate Tuesdays following each weekend on which the defendant does not have parental access.

The Second Department found that the record does not support the determination to calculate child support on combined parental income in excess of the statutory cap so as to increase the defendant’s child support obligation from $1,896.19 monthly to $3,072 monthly on certain statutory factors set forth in DRL § 240(1-b)(f).  The court stated that it considered the standard of living the children would have enjoyed had the household remained intact as well as the financial resources of the parties.  The record, however, does not demonstrate that the children are not living in accordance with the lifestyle that they would have enjoyed had the household remained intact (see Matter of Good v. Ricardo, 189 AD3d 830, 832).

When determining an appropriate child support award, the court should consider the children’s actual needs and the amount required for them to live an appropriate lifestyle (see Doscher v. Doscher, 137 AD3d 962, 964).  The record shows that the plaintiff has no extraordinary expenses, lives rent-free at her parents’ house, reported no child care costs, and reported minimal costs for education and extracurricular activities (see Matter of Peddycoart v. MacKay, 145 AD3d at 1083-1084).  The Second Department finds it appropriate to apply the statutory percentage to the statutory cap of $154,000, with no further child support obligation based on the combined income over that amount (see id.) and reduce the defendant’s prospective child support obligations and child support arrears in accordance with that determination.   The Second Department also rejects the defendant’s contention that remittal is necessary for a de novo determination of child support arrears (see Levi v. Levi, 186 AD3d 628, 1629-1630).