AREGANO v. AREGANO (2001)

The parties were married in 1985 and five children were born of the marriage.   In April 1999 plaintiff commenced a divorce action, and defendant counterclaimed for a divorce on the ground of abandonment.   The parties thereafter stipulated to a divorce based on the counterclaim.   In October 1999 the parties entered into a separation agreement in which the parties agreed that “[t]he Wife will accept $0.00 as child support at this time.”   The judgment of divorce nevertheless ordered plaintiff to pay $25 per month as support for the parties' four unemancipated children retroactive to April 1999.

 Plaintiff is correct that a state is prohibited from enacting child support guidelines that impose “an irrebuttable mandatory minimum” amount of child support (Matter of Rose v. Moody, 83 N.Y.2d 65, 69, 607 N.Y.S.2d 906, 629 N.E.2d 378, cert. denied sub nom. Attorney Gen. of N.Y. v. Moody, 511 U.S. 1084, 114 S.Ct. 1837, 128 L.Ed.2d 464;  see, 42 USC § 667[b] [2] ).   Here, however, Supreme Court did not order child support in the amount of $25 as the mandatory minimum pursuant to subdivision (1)(g) of Family Court Act § 413 (cf., Matter of Deborah A.D. v. David E. C., 217 A.D.2d 1005, 1005-1006, 630 N.Y.S.2d 834).   Rather, the court ordered that amount pursuant to subdivision (1)(a) of Family Court Act § 413, which provides that “the parents of a child under the age of twenty-one years are chargeable with the support of such child and, if possessed of sufficient means or able to earn such means, shall be required to pay for child support a fair and reasonable sum as the court may determine [emphasis added].”  “[A] parent's child support obligation is not necessarily determined by his or her existing financial situation but, rather, by his or her ability to provide support” (Matter of Lutsic v. Lutsic, 245 A.D.2d 637, 638, 665 N.Y.S.2d 112).   Consequently, the court did not abuse its discretion in ordering plaintiff to pay child support in the amount of $25 per month (see, Parry v. Parry, 93 A.D.2d 989, 990, 461 N.Y.S.2d 616).

Judgment unanimously affirmed without costs.

MEMORANDUM: