Cody v. Evans-Cody

291 A.D.2d 27, 735 N.Y.S.2d 181, 2001 N.Y. App. Div. LEXIS 12964
CourtAppellate Division of the Supreme Court of the State of New York
DecidedDecember 24, 2001
StatusPublished
Cited by23 cases

This text of 291 A.D.2d 27 (Cody v. Evans-Cody) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Cody v. Evans-Cody, 291 A.D.2d 27, 735 N.Y.S.2d 181, 2001 N.Y. App. Div. LEXIS 12964 (N.Y. Ct. App. 2001).

Opinion

OPINION OF THE COURT

H. Miller, J.

The petitioner father has sole custody of the parties’ three children. The issue on this appeal is whether the Family Court erred in failing to consider the respondent mother’s inheritance in calculating her child support obligation. For the reasons which follow, we conclude that the Family Court erred in failing to award additional child support based upon this resource.

The relevant facts are not in dispute. On May 26, 1999, the respondent left her three children and the petitioner in Westchester County and moved to Arizona. She did not notify the petitioner prior to her departure. Upon arriving in Arizona, the respondent obtained work on a ranch as a “wrangler,” guiding tourists by horse into the surrounding countryside. At the time of her departure, the respondent had approximately $130,000 in various bank accounts from money that she had inherited from her father’s estate. During the marriage, the respondent used the inheritance to pay the mortgage and taxes on the marital residence, which were approximately $1,374 per month.

The petitioner obtained sole custody of the parties’ three children, ages 5, 9, and 11, on September 20, 1999, and filed a petition for child support the same day. The parties were divorced pursuant to a judgment obtained by the respondent in Arizona on October 14, 1999. On October 15, 1999, the respondent married Harold Rouch, another employee at the ranch.

During the hearing on the support petition, the respondent testified that she used her inheritance money to purchase a [29]*29mobile home and 25 acres of land in Arizona, as well as furnishings, appliances, and a septic tank for her new home. The respondent took a mortgage in the amount of $15,000 on the property in Arizona and purchased a 1999 Jeep valued at $19,000. According to the respondent’s financial disclosure form, her gross wages at the ranch are $21,455 per year. The respondent, who has worked as a receptionist in the past, acknowledged that employment opportunities were limited where she currently resides. The respondent has a high school education and has taken some college courses. The respondent’s new husband earns $260 per week at the ranch. The petitioner earns approximately $40,000 per year.

On February 17, 2000, the Hearing Examiner ordered, inter alia, that the respondent pay $1,335.25 per month in child support for her three children. After determining that the respondent’s basic child support obligation under the Child Support guidelines was $484.37 per month, the Hearing Examiner concluded that an order based solely upon the respondent’s wages would be “unjust and inappropriate” in light of her inheritance. The Hearing Examiner noted that the respondent’s children had benefited from her payment of the mortgage and taxes before her abrupt move to Arizona.

Upon the respondent’s filing of objections, the Family Court, Westchester County, reduced the child support award to $484.37 per month by order entered May 3, 2000. The Family Court reasoned that while the amount of the respondent’s basic child support obligation was minimal, it could not direct her to pay additional child support based upon her inheritance because that money “had been entirely spent.”

On appeal, the petitioner contends that the Family Court should have considered the respondent’s inheritance in determining the amount of her child support obligation, notwithstanding her dissipation of this resource. We agree and conclude that the respondent should be directed to pay $900 per month in child support for her three children.

The Child Support Standards Act (hereinafter the CSSA), codified in Domestic Relations Law § 240 and Family Court Act § 413, sets forth a formula for calculating the “basic child support obligation” and the noncustodial parent’s pro rata share of that obligation (see, Matter of Cassano v Cassano, 85 NY2d 649, 652). Inheritances are not included in the combined parental income used to calculate the “basic child support obligation” (see, Domestic Relations Law § 240 [1-b] [e] [4]; Family Ct Act § 413 [1] [e]; Matter of Scomello v Scomello, 260 [30]*30AD2d 483, 484; Matter of Bryant v Bryant, 235 AD2d 116, 120). However, the CSSA authorizes the court to award additional support beyond the noncustodial parent’s basic child support obligation (see, Domestic Relations Law § 240 [1-b] [f|, [g]; Family Ct Act § 413 [1] [fl, [g]). If the basic award calculated from the parties’ income is “unjust or inappropriate,” a court shall order the noncustodial parent to pay “such amount * * * as [it] finds just and appropriate” (Domestic Relations Law § 240 [1-b] [g]; Family Ct Act § 413 [1] [g]). Thus, the court may deviate from the formula used to determine a noncustodial parent’s basic child support obligation when strict application of the guidelines will produce unjust or inappropriate results (see, Family Ct Act § 413 [1] [f], [gj; Domestic Relations Law § 240 [1-b] [f], [g]; Matter of Barrett v Barrett, 281 AD2d 799; Carlson-Subik v Subik, 257 AD2d 859, 861; Santy v Santy, 207 AD2d 535). Where additional support is warranted, the court must consider all of the parties’ financial resources (see, Family Ct Act § 413 [1] [f] [1]; Domestic Relations Law 240 [1-b] [f] [1]; Matter of Webb v Rugg, 197 AD2d 777).

In addition to the provisions requiring the court to consider all of the parent’s financial resources where additional support is warranted (see, Family Ct Act § 413 [1] [f] [1]; Domestic Relations Law § 240 [1-b] [f] [1]), the CSSA expressly authorizes the court to allocate a proportion of a parent’s inheritance to child support. Family Court Act § 413 (1) (e) provides in relevant part as follows:

“Where a parent is or may be entitled to receive non-recurring payments from extraordinary sources not otherwise considered as income pursuant to this section, including * * * [g]ifts and inheritances * * * the court * * * may allocate a proportion of the same to child support, and such amount shall be paid in a manner determined by the court.”

The identical provision is contained in Domestic Relations Law § 240 (1-b) (e). Thus, there is clear statutory authority for factoring the respondent’s inheritance into her child support obligation.

Other jurisdictions have also concluded that a parent’s inheritance is a proper consideration in computing child support. In some jurisdictions, the entire amount of the inheritance is included as gross income for purposes of determining child support (see, Gardner v Yrttima, 743 NE2d 353 [Ind]; Humphreys v DeRoss, 737 A2d 775 [Pa], lv granted 563 Pa 216, 759 A2d 371; Ford v Ford, 1998 WL 730201, 1998 Tenn App LEXIS [31]*31703; Goldhamer v Cohen, 31 Va App 728, 525 SE2d 599; Forsythe v Forsythe, 41 Va Cir 82). Other states, however, have held that only the interest generated by the inheritance constitutes gross income (see, Rowlett v Bunion, 68 Ark App 228, 6 SW3d 372; County of Kern v Castle, 75 Cal App 4th 1442, 89 Cal Rptr 2d 874; In re Marriage of Armstrong, 831 P2d 501 [Colo]; Stula v Stula, 1998 WL 457694, 1998 Conn Super LEXIS 2132; Reech v Reech, 1997 WL 37740, 1997 Ohio App LEXIS 318 [8th Dist]; Matter of Gainey v Gainey, 89 Wash App 269, 948 P2d 865; Helgeson v Helgeson, 190 Wis 2d 468, 528 NW2d 91).

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Bluebook (online)
291 A.D.2d 27, 735 N.Y.S.2d 181, 2001 N.Y. App. Div. LEXIS 12964, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cody-v-evans-cody-nyappdiv-2001.