Matter of Joleene D.R. v. Robert J.W.
This text of 2007 NY Slip Op 51201(U) (Matter of Joleene D.R. v. Robert J.W.) is published on Counsel Stack Legal Research, covering New York Family Court, Oswego County primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.
Opinion
| Matter of Joleene D.R. v Robert J.W. |
| 2007 NY Slip Op 51201(U) [15 Misc 3d 1148(A)] |
| Decided on June 14, 2007 |
| Family Court, Oswego County |
| Roman, J. |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| As corrected in part through June 25, 2007; it will not be published in the printed Official Reports. |
In the Matter of a Proceeding for Support under Article 4 of the Family Court Act Joleene D.R., Petitioner,
against Robert J.W., Respondent. Robert J.W., Petitioner, against Joleene D.R., Respondent. |
10225
David J. Roman, J.
On March 19, 2007, Respondent Joleene D.R., by and through her attorney, Richard C. Mitchell, Jr., filed specific written Objections to the Order of Support Hearing Magistrate Samuel J. Sugar, entered on February 28, 2007. The Court's file contains an Affidavit of Service which reflects that a copy of the Objection was served in accordance with §439(e) of the Family Court Act upon the Petitioner. On April 10, 2007, a Rebuttal was received from Mr. W.'s attorney, Stephen A. Paquette, Esq.,
These proceedings were originally commenced by Ms. D.R., upon the filing of a petition, on July 7, 2006, wherein she sought to establish an order of support relative the parties' daughter, M., born August 27, 2003. Thereafter, on August 29, 2006, Robert J. W. filed a Cross-petition seeking similar relief. Following preliminary appearances, a hearing was held, in all matters, on January 5, 2007, before Support Magistrate Samuel J. Sugar. Petitioner appeared and was represented by Richard C. Mitchell, Jr., Esq.; Respondent also appeared, and was represented by Stephen A. Paquette, Esq. Based upon the proof and testimony, Mr. Sugar denied Ms. D.R.'s
petition, but granted the Cross-petition, in favor of Mr. W. The terms of the latter order provide that Ms. D.R. must pay current care support in the amount of $90.00, on a bi-weekly basis, [*2][*3]retroactive to August 29, 2006, plus an additional $40.00 bi-weekly toward arrears which total $1,305.00 as of March 16, 2007. Mr. Mitchell has filed these Objections from the latter order.
Objector raises several issues in these proceedings. First, that Mr. Sugar erred in awarding child support to Robert W. because, under the custody order, the parties share equal time with their daughter, and, therefore, support should have been awarded to Ms. D.R. since Robert W. is the higher wage earner; second, that Mr. Sugar erred in determining child support without reviewing Mr. W.'s full financial disclosure affidavit including his most recent tax returns, W-2 statements, and pay stubs; third, that the Mr. Sugar failed to consider certain indirect contributions Ms. D.R. is making toward support through her joint ownership of the parties' former residence which Mr. W. continues to live in with the subject child, "M."; and, finally, that the Mr. Sugar's determinations are against the weight of the evidence. Counsel requests that the Court review the record and reverse the Findings of Fact, and/or remand these proceedings for a new hearing before a different Support Magistrate.
The Court has examined the record of these proceedings, as well as the papers and pleadings had in this action, and the evidentiary submissions, which were at Mr. Sugar's disposal. As a general rule, the Support Magistrate's Findings of Fact "should not be rejected unless they are contrary to the weight of the credible evidence or in error as a matter of law" (see Matter of Weiner v. Weiner, 97 Misc 2d 920 (Monroe Co. Family Ct. 1979)). The greatest deference should be given to the factual findings of a support magistrate who is in the best position to assess the credibility of the witnesses and the evidence proffered (see Matter of Niagara County DSS v. Randy M., 206 AD2d 878 (4th Dept. 1994); Matter of McCarthy v. Braiman, 125 AD2d 572 (2nd Dept. 1986)).
In the first Objection, counsel alleges that the Support Magistrate erred in awarding child support to Mr. W. because the child spends equal time with each parent. Both parties submitted diaries of the days and times when the subject child was ostensibly in his or her custody. The documents were admitted into evidence (Petitioner's Exhibit 1, 5, 8 and Respondent's Exhibit B). Mr. Sugar requested the preparation of the documents contained in the latter exhibits during a preliminary appearance in these proceedings. Based upon his "approach"[FN1] in cases of this nature, which includes giving less weight to periods of time when the child is sleeping or at daycare, Mr. Sugar determined that Mr. W. is the custodial parent, finding that "M" spends substantially more time in his "immediate personal care and supervision."
The Court finds that the standard of law applied by Mr. Sugar in reaching the latter conclusion is erroneous. The Court of Appeals, in Bast -v- Rossoff, 91 NY2d 723 (1998), held that, when setting child support in shared custody cases, the court must first identify which parent has "physical custody of the child for the majority of the time" and then make a support award based upon the traditional three-step analysis set forth in the Child Support Standards Act [*4][*5](hereinafter referred to as the "CSSA") (see id. at 728). The term "physical custody" is a term of art which in this context to mean either actual possession or control over the child. Therefore, it was error to make any distinction between the time a child spends with their parent during the waking hours or while in their care at night (see Somerville -v- Somerville, 5 AD3d 878 (3rd Dept. 2004).
In light of the error of law, the Court must consider whether there is sufficient factual information contained in the record to permit the entry of new findings in accordance with the inherent authority set forth in Section 439 of the Family Court Act. Ms. D.R. submitted two very detailed exhibits which contain the dates and hours of the day each party was engaged in parenting M. from March 1, 2006 through December 31, 2006[FN2]. The Court elected to analyze Ms. D.R.'s exhibits to determine whether her own evidence would support her claim that the parties' parental access with M. is equally shared. All of the information presented in the exhibits has been illustrated in the following chart:
ACTUAL TIME CHILD SPENT WITH PARENTS and CARE PROVIDERS
| MOTHER | FATHER | DAYCARE | MOTHER | FATHER | DAYCARE | ||
| (HOURS) | (PERCENTAGE) | ||||||
| March-06 | 288.00 | 430.50 | 25.50 | 38.71% | 57.86% | 3.43% | 100.00% |
| April-06 | 310.50 | 394.50 | 15.00 | 43.13% | 54.79% | 2.08% | 100.00% |
| May-06 | 312.50 | 395.00 | 36.50 | 42.00% | 53.09% | 4.91% | 100.00% |
| June-06 | 276.50 | 416.50 | 27.00 | 38.40% | 57.85% | 3.75% |