The parties, married in 1978 and subsequently divorced, have been before in Court on three prior occasions stemming from petitioner’s January 1995 application for an upward modification of respondent’s weekly child support obligation for the parties’ two children, born in 1980 and 1983. A New York Family Lawyer said the decision rendered, the Court reversed Family Court’s order which set respondent’s weekly child support obligation and remitted the matter for further record articulation of the factors supporting Family Court’s determination to deviate from the application of the statutory percentage to the parties’ combined income. Upon remittal, the Hearing Examiner made some additional findings but adhered to the weekly child support order. Family Court, by order, denied petitioner’s objections and confirmed the Hearing Examiner’s order.
A Delaware County Family attorney said that petitioner commenced an action seeking an upward modification of the order based upon respondent’s increased earnings and a decrease in her household income. A New York Custody Lawyer said the petitioner also sought a nunc pro tunc modification of the order, pursuant to Family Court Act § 451, claiming that respondent had concealed earned overtime income at the time of the original support hearing. She also sought a direction that respondent pay his future child support through the Child support Collection Unit and an award of counsel fees. Family Court modified its order in an order entered. The court increased respondent’s weekly child support obligation retroactive to April 7, 1997, granted petitioner’s request for the payment of future child support through the Child support Collection Unit and denied her applications for a nunc pro tunc order and for counsel fees.
Petitioner appeals.
The Court turn first to petitioner’s claim for a modification of the child support order nunc pro tunc. Under Family Court Act § 451, “[a] modification may increase support payments nunc pro tunc as of the date of the initial application for support based on newly discovered evidence”. As newly discovered evidence, petitioner alleges that respondent substantially understated his actual income at the March 7, 1995 hearing because neither his 1994 W-2 form nor his financial disclosure affidavit reflected the amount of his overtime. The Court’s examination of the record shows that at the said hearing, respondent stated that his overtime varied from year to year, but it does not appear that petitioner questioned him regarding the extent of earned overtime for 1994 or its availability in 1995. In any event, it is clear that upon remand, when the Hearing Examiner modified respondent’s child support obligation upward to $220.58 per week, he considered respondent’s 1994 overtime income of approximately $4,000 because he did not limit his calculation of respondent’s income to regular earnings of $47,790.69, as reflected in respondent’s payroll verification dated January 17, 1995, but instead determined income for support purposes for that year to be $51,947.62.
A Long Island Family Lawyer said as a further ground for the issuance of a nunc pro tunc order, petitioner claims that respondent failed to report some $13,000 in 1995 overtime during the Family Court proceeding following the court’s decision. During that proceeding, however, Family Court’s focus was on our directive to reconsider its order in light of its failure to sufficiently elaborate the statutory factors supporting its exercise of discretion to deviate from the application of the percentage formula set forth in the Child support Standards Act. Family Court reconsidered the matter based upon the original record and it does not appear that petitioner requested the court to take further testimony or receive additional evidence concerning respondent’s income at that time. In our view, petitioner’s proof falls short of demonstrating respondent’s concealment of overtime income during the said hearing or subsequently during the proceedings in the summer of 1996 and, therefore, her request for a nunc pro tunc order was properly denied.
Next, the court addressed petitioner’s contention that Family Court incorrectly determined the combined earnings of the parties for the year 1996. A Long Island Custody Lawyer said the first step of the three-step statutory formula of the CSSA is the calculation of the parents’ combined income. Under the CSSA, a parent is required to include in “income” all income “as should have been or should be reported in the most recent federal tax return” plus, “to the extent not already included in gross income the amount of income or compensation voluntarily deferred”.
In its calculation of the parties’ income for 1996, Family Court neglected to add back their elective deferred compensation contributions of $1,184.94 for respondent and $1,450 for petitioner. Thus, respondent’s income for 1996, as reported on his 1996 W-2 form from the State Power Authority in the amount of $58,489.11, should have been increased by $1,184.94. That sum, $59,674.05, when added to his other compensation received from the State in the amount of $1,208.75, less FICA of $3,888.35, should have yielded a total income for child support purposes of $56,994.45. Similarly, petitioner’s income of $41,506.66 should have been increased by $1,540, less FICA of $2,752.25, for a total $40,289.41. Based upon our recalculations, the correct combined parental income for 1996 should be $97,283.86. Multiplying that figure up to $80,000 by 25%–for two children–and allocating that amount between the parents according to their share of the total income, yields a pro rata child support obligation for respondent of $11,718 annually or $225.35 weekly.
As noted by Family Court, respondent did not offer proof that his living expenses increased substantially since the March 7, 1995 hearing. Nor did he submit proof pursuant to the “paragraph (f)” factors to show that the application of the statutory percentage would be unjust or inappropriate. Moreover, our review of the evidence presented reveals that respondent has sufficient income to pay his total pro rata share of the basic child support obligation of $274.03 per week, the 10 annual installments of $1,012.52 for accumulated retroactive support previously ordered by this court, the additional accumulated retroactive support, which we are obliged to fix today in the amount of $5,246.56, and still meet his financial obligations to his current household. In short, upon the proof submitted in this record, there is no basis in the record before us to depart from the application of the prescribed statutory percentage.
Accordingly, the Court increased respondent’s total child support obligation to $274 per week for the two children effective February 26, 1999, to be paid biweekly, and further direct that the additional accumulated retroactive support be paid in nine annual installments of $583 on or before August 15th of each year commencing August 15, 1999, with the last installment due on or before August 15, 2007. Furthermore, in light of our recalculation of the parties’ combined parental income, the parties’ percentage shares of the children’s future health care expenses must also be changed to reflect the correct percentages, namely, 58.59% for respondent and 41.41% for petitioner.
Finally, the Court rejected the matter that Family Court abused its discretion by denying petitioner’s application for counsel fees. Family Court Act § 438(a) permits the court to award counsel fees in a proceeding to modify child support. “[I]n exercising its discretionary power to award counsel fees, a court should review the financial circumstances of both parties together with all the other circumstances of the case”. Here, the court was fully informed of the circumstances of the case and the parties’ financial circumstances, including the impact of respondent’s increased support obligations on his ability to pay and the absence of evidence regarding petitioner’s inability to pay her own counsel fees. Accordingly, we perceive no abuse of its discretion in denying the award.
When a divorce decree was granted by a court, the children of the separating spouses should be given an ample amount for support. Here in Stephen Bilkis and Associates, our Delaware County Child Support attorneys are here to advice you with the amount of support to be granted to the children. For other concerns, please call our Delaware County Family Attorneys. We will be glad in resolving your problems.