In an action, inter alia, for awards of child custody and child support, the plaintiff father appeals, as limited by his brief, from so much of an order of the Supreme Court, Suffolk County, dated October 25, 2007, as, in effect, granted that branch of the defendant mother’s cross motion which was for child support pendente lite to the extent of directing him to pay the defendant mother the sum of $426 per week.
A New York Famiy Lawyer said that, the parties, who were never married to each other, are the parents of two young children. In May 2006 the father filed a petition in the Family Court, Suffolk County seeking custody of the children. The mother cross-petitioned for custody, and additionally petitioned for child support. During the course of the Family Court proceedings, the parties entered into a so-ordered stipulation in which they agreed to temporarily share equal physical custody of the children. After the parties reached their temporary custody agreement, a Family Court Support Magistrate denied the mother’s petition for child support.
A New York Custody Lawyer said that, the Support Magistrate found that the parties had joint residential custody, and deemed the father the noncustodial parent because he had a greater income. However, the Support Magistrate declined to direct the father to pay child support because he was paying his adult daughter the sum of approximately $300 per week to care for the children in his home, and the children thus spent a greater amount of time at his residence.
A Westchester County Family Lawyer said that, the parties subsequently reached an agreement to discontinue the pending Family Court custody proceeding in favor of the father’s commencement of an action in the Supreme Court. On consent of the parties, the Family Court directed the continuation of all existing orders in the custody proceeding without prejudice “until the further order of a court of competent jurisdiction.”
A Suffolk County Family Lawyer said that, the father thereafter commenced this action, inter alia, for awards of custody and child support in the Supreme Court, Suffolk County, and moved for sole legal and physical custody of the children. The mother counterclaimed, inter alia, for custody and child support. The Supreme Court referred the issue of custody to the trial court for determination, but awarded the mother child support pendente lite, noting that where parents share joint physical custody, the parent with the greater income is deemed to be the noncustodial parent for purposes of determining support.
The issue in this case is whether the court erred in ordering the father to provide child support.
the court held that, contrary to the father’s contention, the Supreme Court did not violate the law of the case doctrine by directing him to pay child support pendente lite. The law of the case doctrine is based upon the fundamental principle that a judge may not review or overrule an order of another judge of coordinate jurisdiction in the same action or proceeding. This principle has no applicability here, where the prior order denying the mother child support was issued by a Support Magistrate in a different proceeding. In any event, this Court is not bound by the doctrine of law of the case under these circumstances and, thus, may review the Supreme Court’s award of temporary child support on the merits.
Under the circumstances of this case, the Supreme Court properly deemed the father to be the noncustodial parent for the purpose of determining temporary support. Here, the temporary custodial arrangement agreed to by the parties essentially split physical custody of the children on an equal basis. Thus, the parent with the higher income, who bears the greater share of the child support obligation, in this case the father, should be deemed the noncustodial parent for the purpose of support. Furthermore, while the father contends that application of the Child Support Standards Act (hereinafter CSSA) in this case yielded a temporary child support award which was unjust or inappropriate, we note that modifications of pendente lite awards should rarely be made by an appellate court, and then only under exigent circumstances, which do not exist here. As we have repeatedly observed in analogous circumstances where challenges to temporary support awards are made in matrimonial actions, perceived inequities in pendente lite support can best be remedied by a speedy trial.
Accordingly, the court held that the order is affirmed insofar as appealed from, without costs or disbursements.
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