Keane v. Boone

189 Misc. 2d 60, 730 N.Y.S.2d 406, 2001 N.Y. Misc. LEXIS 300
CourtNew York City Family Court
DecidedJuly 9, 2001
StatusPublished

This text of 189 Misc. 2d 60 (Keane v. Boone) 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
Keane v. Boone, 189 Misc. 2d 60, 730 N.Y.S.2d 406, 2001 N.Y. Misc. LEXIS 300 (N.Y. Super. Ct. 2001).

Opinion

OPINION OF THE COURT

Marianne O. Mizel, J.

Emanuel Keane filed a petition against Elizabeth Boone regarding the order of support for the parties’ children, Daniel Keane and Hannah Keane. The petition alleged that a change in circumstances had occurred in that custody of Daniel was now with his father where formerly both children had resided with their mother. Hannah still remained with her mother. [61]*61The Hearing Examiner issued a decision determining that Baraby v Baraby (250 AD2d 201 [3d Dept 1998]) applied and calculated Daniel’s support utilizing Ms. Boone’s income, which is higher than Mr. Keane’s, and did not calculate a support amount for Hannah.

Mr. Keane objects that the Baraby approach utilized by the Hearing Examiner is inappropriate to a split custody arrangement. Baraby was decided in a situation where each parent exercised equal custodial time with the children, i.e., shared custody. In the instant case, each parent has custody of one child, i.e., split custody. Baraby declared that the court should determine which parent has the greater adjusted gross income for child support purposes, denominate that person the noncustodial parent, and compute support accordingly. Baraby declared that this methodology fulfilled the primary purpose of the Child Support Standards Act (Family Ct Act § 413; Domestic Relations Law § 240 [CSSA]) in that it ensured that the children “w[ould] realize the maximum benefit of their parents’ resources and continue, as near as possible, their preseparation standard of living in each household” (at 204). Baraby in essence determined which parent would be the financial clearinghouse for the expenses related to the children. Although some expenses were necessarily equally duplicated (such as the cost of maintaining suitable shelter) or equally divided (such as the cost of food) in each household, one parent needed to be designated to be responsible for the unique expenses. It enures to the benefit of the children to have the moneyed parent paying the nonmoneyed parent in a 50% situation the full amount which would have been ordered as child support under the requirements of Bast v Rossoff (91 NY2d 723 [1998]) if the children were primarily in the custody of the nonmoneyed parent 51% of the time, unless that produced a result which was unjust or inappropriate.

In this case, each parent is both a custodial parent and a noncustodial parent. Each provides the day-to-day parenting of one child and visits with the other child. Bast v Rossoff explicitly rejected the proportional offset method in shared custody situations. However, split custody is different from shared custody and it is appropriate to utilize a net offset when two parents’ children are split between households. The Child Support Standards Act presupposes that each parent, the custodial and the noncustodial, will spend the same percentage of their income on child support. (Matter of Cassano v Cassano, 85 NY2d 649, 653 [1995].) In the situation of a single child, the [62]*62custodial parent will spend 17% of the custodial parent’s income to support the child in that parent’s custody and the noncustodial parent will also spend 17% of the noncustodial parent’s income for the support of that child by payment to the custodial parent as the financial clearinghouse. Where a parent already is under court order to support a noncustodial child, support for a second noncustodial child in a different household before the court is computed by deducting the amount paid pursuant to court order for the first child before computing the amount which the noncustodial parent must pay for the second child (Family Ct Act § 413 [1] [b] [5] [vii] CD]).

Here, Mr. Keane asked that the Court compute the support for both his custodial child, Daniel, and for his noncustodial child, Hannah. The Hearing Examiner issued an order which directs that the amount paid by Ms. Boone is paid for the support of Daniel and ignores the issue of Hannah’s support. In reality, the issue of support for each child has reached the Court in a tie race. Strict application of Baraby in such a situation and allocating support as if there were only one child of the parties entitled to support ignores the reality that there are two children for which each parent is equally responsible.

The Child Support Standards Act recognizes the existence of other children in two situations. First, the CSSA allows deduction from income for support actually paid pursuant to court order or written agreement “on behalf of any child for whom the parent has a legal duty of support and who is not subject to the instant action” (Family Ct Act § 413 [1] [b] [5] [vii] [D]). This clause presupposes that the child whose support is being paid under section 413 (1) (b) (5) (vii) (D) is a noncustodial child of only one of the parents whose support obligation is presently being determined. Mr. Keane has a legal obligation to support Daniel and Hannah and Ms. Boone has a legal obligation to support Hannah and Daniel, but Daniel and Hannah are not children “who [are] not subject to the instant action”: they are the children subject to the instant action. Facially, this provision would seem inapplicable to the present case.

The second situation in which the court can consider the support of another child is in Family Court Act § 413 (1) (f) (8), under which the court may consider whether to deviate from the amount produced by strict application of the formula if the result is unjust or inappropriate, considering

“(8) [t]he needs of the children of the non-custodial [63]*63parent for whom the non-custodial parent is providing support who are not subject to the instant action and whose support has not been deducted * * * pursuant to [Family Court Act § 413 (1) (b) (5) (vii) (D)], and the financial resources of any person obligated to support such children, provided, however, that this factor may apply only if the resources available to support such children are less than the resources available to support the children who are subject to the instant action.”

This clause presupposes that the child whose support is being considered under section 413 (1) (f) (8) is the custodial child of only one of the parents whose support obligation is presently being determined. Again, Hannah and Daniel are not children “who [are] not subject to the instant action”: they are the children subject to the instant action. Also, the resources available to support “the children of the non-custodial parent for whom the non-custodial parent is providing support” are not less or more than “the resources available to support the children who are subject to the instant action”: the resources available, the total parental income, is exactly the same because the court is dealing with the same parents. The total resources available to support Daniel is $73,032, the total of the adjusted gross income of each parent. Likewise, the total resources available to support Hannah is also $73,032. Facially, this provision would also seem inapplicable to the present case.

However, these two provisions indicate an intent that support of other children, both other noncustodial children and other custodial children, be taken into consideration when determining an order of child support. If one of the children were treated as if he or she were not a child who is “subject to the instant action,” one of the barriers to application of each of these clauses would be eliminated.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Bast v. Rossoff
697 N.E.2d 1009 (New York Court of Appeals, 1998)
MATTER OF CASSANO v. Cassano
651 N.E.2d 878 (New York Court of Appeals, 1995)
Kerr v. Bell
178 A.D.2d 1 (Appellate Division of the Supreme Court of New York, 1992)
Holmes v. Holmes
184 A.D.2d 185 (Appellate Division of the Supreme Court of New York, 1992)
Riseley v. Riseley
208 A.D.2d 132 (Appellate Division of the Supreme Court of New York, 1995)
Rochler v. Rochler
215 A.D.2d 831 (Appellate Division of the Supreme Court of New York, 1995)
Simmons v. Hyland
235 A.D.2d 67 (Appellate Division of the Supreme Court of New York, 1997)
Baraby v. Baraby
250 A.D.2d 201 (Appellate Division of the Supreme Court of New York, 1998)
Gluckman v. Qua
253 A.D.2d 267 (Appellate Division of the Supreme Court of New York, 1999)
Borowicz v. Mancini
256 A.D.2d 713 (Appellate Division of the Supreme Court of New York, 1998)
Commissioner of Social Services v. Rush
152 Misc. 2d 823 (NYC Family Court, 1991)

Cite This Page — Counsel Stack

Bluebook (online)
189 Misc. 2d 60, 730 N.Y.S.2d 406, 2001 N.Y. Misc. LEXIS 300, Counsel Stack Legal Research, https://law.counselstack.com/opinion/keane-v-boone-nycfamct-2001.