Deborah D. v. Theodore G.

149 Misc. 2d 299, 564 N.Y.S.2d 955, 1990 N.Y. Misc. LEXIS 653
CourtNew York City Family Court
DecidedNovember 28, 1990
StatusPublished
Cited by3 cases

This text of 149 Misc. 2d 299 (Deborah D. v. Theodore G.) is published on Counsel Stack Legal Research, covering New York City Family Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Deborah D. v. Theodore G., 149 Misc. 2d 299, 564 N.Y.S.2d 955, 1990 N.Y. Misc. LEXIS 653 (N.Y. Super. Ct. 1990).

Opinion

OPINION OF THE COURT

Karen K. Peters, J.

By petition dated May 17, 1989, petitioner moved in the Family Court of Columbia County for an award of support for herself and the parties’ two minor children, Kathryn E. (date of birth July 11, _) and Steven D. (date of birth Jan. 14, _).

After extensive hearings held before Hearing Examiner James A. Spencer of that court on July 25, 1989 and November 21, 1989, by order dated March 16, 1990, respondent was ordered to pay $700 per month for child support, $250 per month for spousal support plus all tuition and necessary costs for the education of the children at the Berkshire School, all necessary costs for the attendance of the children at summer camp, all mortgage, home equity loan and real property taxes due or to become due on the marital residence, maintain complete health insurance coverage in favor of the petitioner and the children and pay for all uninsured, unreimbursed medical expenses for both the petitioner and the children.

Pursuant to section 439 (e) of the Family Court Act, respondent sought an appeal of the Hearing Examiner’s findings of fact, dated March 19, 1990, and order of support, dated March [302]*30216, 1990, by filing a notice of objections in the Family Court of Columbia County. Therein respondent claimed as follows:

1) That the Hearing Examiner’s order requiring respondent to maintain health insurance coverage was based upon the incorrect conclusion that respondent had been providing health insurance coverage for the benefit of the petitioner and the children prior to the institution of these proceedings;

2) That the Hearing Examiner failed to include in his calculation of respondent’s monthly expenses the court-ordered support obligation and other expenses awarded to petitioner by the temporary order of support dated June 19, 1989, as well as the monthly expense of summer camp. Hence, should those expenses be included in respondent’s monthly accounting, and calculating what respondent’s income would have to be to meet such obligations, respondent contends that the Hearing Examiner awarded petitioner more than his net income. Moreover, such award did not account for respondent’s own maintenance;

3) That the Hearing Examiner failed to factor the visitation expenses incurred by the respondent when he exercised visitation with the children two to three days a week;

4) That in determining the fringe benefits received by respondent, the Hearing Examiner incorrectly determined that he was furnished an automobile by_;

5) That since the time of the original hearing, respondent has incurred a new necessary expense — a $250 a month car payment — which respondent contends should be considered by this court on appeal;

6) That notwithstanding a request made at the hearing for a determination that respondent be entitled to claim the children as dependents for tax purposes, no such determination was made by the Hearing Examiner;

7) That as result of the availability of respondent’s 1989 K-l filing on appeal showing his gross earnings from_, to be $73,408, respondent requests a modification of the Hearing Examiner’s finding that his annual income is $110,000;

8) That the Hearing Examiner erred in his calculation of respondent’s proportionate share of child support under the Child Support Standards Act (L 1989, ch 567) by calculating his share to be more than 25% of his income. Furthermore, the Hearing Examiner incorrectly ordered respondent to pay, in addition to child support, the full amount of the children’s expenses for education and summer camp, along with all [303]*303mortgage, home equity loan and real property taxes due and to become due on the marital home, since these "payments are already factored into the percentages of support required under * * * section [413 of the Family Court Act].”

Section 439 (e) of the Family Court Act authorizes this court, based upon its review of the objections, to (1) remand one or more issues of fact to the Hearing Examiner, (2) make, with or without holding a new hearing, the court’s own findings of fact and order, or (3) deny the objections. In connection therewith, this court has fully reviewed the objections submitted by respondent on April 12, 1990, the rebuttal thereto submitted by petitioner on April 23, 1990 and, finally, the reply to petitioner’s rebuttal dated April 27, 1990. This court has also reviewed the Hearing Examiner’s findings of fact, dated March 19, 1990, order of support, dated March 16, 1990, the transcript of the hearings held on July 25, 1989 and November 21, 1989 and all evidence submitted. A copy of such transcript was received by this court on or about October 5, 1990.

With respect to respondent’s first objection regarding the provision of health insurance coverage, this court refers to section 416 of the Family Court Act, as amended, which provides, in pertinent part, as follows: "The court may include in the requirements for an order for support the providing of necessary shelter, food, clothing, care, medical attention * * * the expense of education * * * and other proper and reasonable expenses, provided, however, that when any legally responsible relative has health insurance available through an employer * * * that may be extended to cover persons on whose behalf the petition is brought and when the court determines that the employer * * * will pay for a substantial portion of the premium on any such extension of coverage, any order of support shall require such responsible relative to exercise the option of additional coverage in favor of such persons whom he or she is legally responsible to support * * *. When more than one legally responsible relative has such health insurance available and the court determines that the policies are complimentary, the court may order both legally responsible relatives to exercise the option of additional coverage as provided herein.” Notwithstanding extensive testimony at several different times throughout these proceedings that the petitioner, through her employment with _, has provided health insurance coverage for herself and her family prior to the institution of these proceedings, the [304]*304Hearing Examiner in the instant case made a finding on page two of the findings of fact that "[t]he respondent provides health insurance coverage for the benefit of the petitioner and the children.” Hence, devoid of any indication in the record that the Hearing Examiner found respondent’s available policy to be more favorable than petitioner’s or that notwithstanding prior coverage provided by petitioner, respondent should exercise the health insurance policy available to him, this court concludes that there appears to be an error in fact made by the Hearing Examiner as to which of the parties had previously been providing family coverage. Accordingly, this court hereby remands this issue to the Hearing Examiner to either correct such error or make a determination that either the respondent or both parties should bear the cost of health insurance coverage.

Respondent’s third objection that the expenses incurred by him upon the exercise of visitation with his children two to three days per week should have been factored into the amount of child support awarded to petitioner must be denied in its entirety.

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Cite This Page — Counsel Stack

Bluebook (online)
149 Misc. 2d 299, 564 N.Y.S.2d 955, 1990 N.Y. Misc. LEXIS 653, Counsel Stack Legal Research, https://law.counselstack.com/opinion/deborah-d-v-theodore-g-nycfamct-1990.