Diamond v. Diamond

11 A.D.3d 289, 782 N.Y.S.2d 719, 2004 N.Y. App. Div. LEXIS 11944

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: October 14, 2004
• Status: Published

Opinion

Judgment of divorce, Bronx County (La Tia W. Martin, J.), entered on or about November 18, 2003, which, insofar as appealed from as limited by the briefs, directed defendant to pay plaintiff child support retroactive to plaintiffs request therefor, unanimously modified, on the law and the facts, to delete the directives relating to the amount of the arrears and their payment and to remand the matter for further findings with respect thereto, and otherwise affirmed, without costs.

The trial court properly applied the statutory three-step formula in determining the basic child support obligation in this joint custody context (see Bast v Rossoff, 91 NY2d 723 [1998]). However, given the extended amount of time between plaintiff’s request for child support and the court’s award thereof, calculation of retroactive amounts should not have been based on the parties’ income for the latest year for which there was evidence, but on their actual income for the retroactive years in question (see Matter of Kalapodas v Kalapodas, 305 AD2d 1047, 1048 [2003]). Accordingly, we remand for further findings with respect to the award of arrears. Concur—Mazzarelli, J.P., Sullivan, Friedman, Gonzalez and Catterson, JJ.