POWERS v. POWERS (2007)

Order, Supreme Court, New York County (Marilyn B. Dershowitz, Special Referee), entered on or about January 5, 2006, which, to the extent appealed from, directed defendant to pay $3867 per month in child support, to maintain health insurance for the parties' children, and to pay 90% of their unreimbursed health care expenses, tuition and add-ons, unanimously modified, on the facts, to adjust defendant's monthly payment from $3867 to $3287, and otherwise affirmed, without costs.

The Special Referee properly found that defendant, as the parent with the higher income, should be deemed the non-custodial parent for the purpose of determining child support obligations, despite the parties' shared custody arrangement (see Bast v. Rossoff, 91 N.Y.2d 723, 675 N.Y.S.2d 19, 697 N.E.2d 1009 [1998];  Baraby v. Baraby, 250 A.D.2d 201, 681 N.Y.S.2d 826 [1998] ).   The Referee properly determined the income of each parent and imputed additional income to the father based on his education, past earnings, and earning potential (see Matter of Culhane v. Holt, 28 A.D.3d 251, 813 N.Y.S.2d 400 [2006];  Kent v. Kent, 291 A.D.2d 258, 738 N.Y.S.2d 31 [2002] ).   We modify defendant's monthly payment only to correct a calculation error, and to reflect plaintiff's increased income as a result of her no longer paying a mortgage on rental property that is the source of her income.

We have considered defendant's remaining contentions and find them unavailing.