Child Support Awarded to Wife Even though Husband Awarded Sole Custody; Residency Shared Equally/Husband Has Much Higher Income than Wife

In a full-fledged opinion by Justice Lindley, the Fourth Department determined child support should have been awarded to the wife (defendant), even though the husband had sole legal custody, because the residency of the children was shared equally and the wife’s income was less than the husband’s:

…[T]he court erred in awarding child support to plaintiff and that the court instead should have awarded child support to her. It is well settled that in shared residency arrangements, where neither parent has the children for a majority of the time, the party with the higher income is deemed to be the noncustodial parent for purposes of child support….  Here, as noted, the residency schedule affords the parties equal time with the children, and thus neither party has the children for the majority of the time. Inasmuch as plaintiff’s income exceeds that of defendant — at the time of trial, plaintiff earned $134,924.48 annually, while the JHO imputed income of $25,000 to defendant, whose actual earnings were $14,109.53— plaintiff is the “noncustodial” parent and, as such, he must pay child support to defendant.

It is true, as plaintiff points out, that [the cited cases] involve awards of joint legal custody, whereas he was awarded sole legal custody; that fact, however, should not affect the child support determination.  Although the award of sole legal custody to plaintiff allows him to make important decisions in the children’s lives, that decision-making authority does not increase his child-related costs. A parent’s child-related costs are dictated by the amount of time he or she spends with the children, and, here, plaintiff spends no more time with the children than does defendant.  We note, moreover, that there is already a significant disparity in the parties’ incomes, and an award of child support to plaintiff would only widen that gulf.  In our view, the children’s standard of living should not vary so drastically from one parent’s house to the other.

Thus, under the circumstances of this case — where plaintiff has sole legal custody, but the residency schedule affords the parents equal time with the children — an award of child support to defendant will best “assure that [the] children will realize the maximum benefit of their parents’ resources and continue, as near as possible, their preseparation standard of living in each household” … .  Leonard v Leonard, 402, 4th Dept 6-28-13