On December 31, 2008, the Appellate Division released the opinion in the case of Cardell v. Kirby.  In this case, child support over the guidelines was limited to a nominal amount by the trial court and the Appellate Division affirmed.  To see the full opinion, click here.

In this case, the defendant-father lived in NY with his wife and two children.  As some point, he became estranged from his wife and had a relationship with the plaintiff-mother  that resulted in a child born in November 2006.  Subsequent to that time, he resumed living with his wife.  The defendant seemingly earned or had the ability to earn more than $500,000 per year.  In fact, in 2006, he earned  just under $700,000 and the plaintiff earned just under $87,000

The plaintiff filed a complaint and motion seeking, among other things, $4,000 per week. The defendant began paying support of $2,600 per month and filed a cross motion seeking to limit his support to that amount.

The judge determined that the top child support due from the defendant to the plaintiff, inclusive of his share of child care, was $632.00 per week.  Noting that he had to add some amount over that, he added $17.50 per week to pay a portion of plaintiff’s loan that was required to renovate her
apartment to accommodate the parties’ daughterThe plaintiff appealed.

The Appellate Division noted the established principle that the needs of an infant are less than those of teenagers.  The Court also noted that "a balance must be struck between reasonable
needs, which reflect lifestyle opportunities, while at the same time precluding an inappropriate windfall to the child or to the custodial parent."  The Court disagreed with plaintiff’s contention that the court erred by not considering the lifestyle that her daughter is entitled to, based on defendant’s significant earnings.

The Court also rejected plaintiff’s assertion that the court erred by failing to recognize that the amount of expenses declared in her December 2006 Case Information Statement only represented what she could then afford, "at a time when defendant was not paying support."  The Court noted that the trial judge correctly determined the child support based upon the information that it had before it at the time.

Read together, it seems as though plaintiff may have made a mistake by failing to include a CIS with not only her actual budget, but one that included a proposal of what her expenses would be if she was receiving the support that she sought.  Specifically, the quote from the reported Walton v. Visgil case, restated in the Isaacson case, probably should have been heeded.  The quote is as follows:

where as here, the children are entitled to share in a parent’s good fortune, the custodial parent’s budget should be broken down into two parts: the reality-based component dictated by his or her income and the added projections which will, in fact, allow the children to share in the other parent’s financial gain. This could include, by way of example, private school tuition, private tutoring, summer camps, music or art lessons, sports clinics, vacations, study abroad, and the provision of transportation for a child who drives, to mention only a few possibilities. It could also include help to make the family home more presentable, assistance with the cost of a family car, or a larger amount of money for a teenager’s clothing and incidentals. As we have said, these are only examples. What is important is that sufficient thought, effort and information is put into the two-part budget to give the trial judge a basis on which to act under Dunne and Zazzo.

Of course, in a case of a 9 months old, it is probably hard to come up with these types of extras.

 

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