3758, 3757.

2017 NY Slip Op 02942

IN RE IVY GARDUNO, Petitioner-Appellant, v. FRANKLIN VALDEZ, Respondent-Respondent.

Appellate Division of the Supreme Court of New York, First Department.

Attorney(s) appearing for the Case

Plaine & Katz, LLP, Kew Gardens ( Joshua R. Katz of counsel), for appellant.

Treuhaft & Zakarin, LLP, New York ( Miriam Zakarin of counsel), for respondent.

Before: Friedman, J.P., Renwick, Moskowitz, Feinman, Kapnick, JJ.

Order, Family Court, New York County (Adetokunbo O. Fasanaya, J.), entered on or about October 13, 2016, which, to the extent appealed from, granted respondent-ex-husband's objections to a modification of an earlier support order (the modified order) and remanded the matter for recalculation by the Support Magistrate, unanimously reversed, on the law and the facts, without costs, the objections denied, and the modified order reinstated. Appeal from order, Family Court, New York County (Karen D. Kolomechuk, Support Magistrate), entered on or about November 15, 2016, issued upon the aforementioned remand, unanimously dismissed, without costs, as academic.

The modified order was consistent with the application of the statutory formula followed in Matter of Cassano v Cassano (85 N.Y.2d 649, 651 [1995], citing Family Ct Act § 413; Domestic Relations Law § 240]), and the Support Magistrate did not improvidently exercise her discretion in issuing it. The Support Magistrate properly calculated the husband's 2015 salary as $126,160.15, which was the salary the husband testified to at the support hearing and the amount of his gross income as reflected on his 2015 W-2. The husband's voluntarily deferred income in the form of his 401(k) contributions was properly included in his income (Family Ct Act § 413(1)(b)(5)(iii); see also Gilbert v Gilbert, 32 A.D.3d 414, 416 [2d Dept 2006]).

The Family Court also incorrectly found that the Support Magistrate improperly applied the Child Support Standards Act (CSSA) to the parties' combined income above the statutory cap of $143,000. The Support Magistrate had the option of applying the statutory percentage (here, 17% for one child) "and/or" the statutory factors contained in subsection (f) of Family Ct Act § 413, or some combination of those two methods (see Cassano, 85 NY2d at 653-654; see also Gina P. v Stephen S., 33 A.D.3d 412 [1st Dept 2006]). The Support Magistrate elected to apply the statutory percentage to the parties' above-the-cap income and provided three sound reasons for doing do, including the child's special needs, which was not an improvident exercise of discretion (id.; see also Anonymous v Anonymous, 286 A.D.2d 585 [1st Dept 2001]).



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