C.M.W., Plaintiff, v. R.J.W., Defendant. (2021)

This Court resolves the issues in a divorce action that centered on unusual disputes over joint parenting time and the equity in the marital residence.

The Husband and Wife were married in August 2010 in a civil ceremony. The couple have two children, ages eight and five. The Husband commenced the divorce action in September, 2019. After negotiations failed to resolve the matter, a trial of this matter was held over the course of five days, to wit: November 1, 2020, December 3, 2020, January 13, 2021, March 12, 2021 and March 23, 2021. During the proceedings, both the husband and wife had separate counsel and the children were represented by an attorney appointed by the Court.

Based on the proof at trial, the Court decides the following:

1. GROUNDS

It is undisputed that the Husband swore that the relationship between the parties having been irretrievably broken for at least six (6) months prior to the commencement of the action. That declaration provides the grounds for a divorce under DRL § 170(7). Palermo v Palermo, 100 AD3d 1453 (4th Dept 2011).

2. EQUITABLE DISTRIBUTION OF PROPERTY AND LIABILITIES

In resolving the property issues, this Court considered the following undisputed factors:

a. the income and property of each party at the time of the marriage were nearly identical;

b. the duration of the marriage was nine years and one month;

c. the Husband is 41 years of age and the Wife is 37 years of age and both parties are in good health;

d. currently, the father occupies the marital residence and, based on its location, the children attend Fairport schools;

e. the Husband will have a loss of health insurance benefits upon dissolution of the marriage;

f. both parties have careers that ensure solid future financial circumstances given their career choices; and,

g. both parties have appropriate education for their careers.1

A. MARITAL RESIDENCE

The couple jointly own real property used as the marital residence located in the Village of Fairport. It was purchased during the marriage and a mortgage exists. The residence is a marital asset and the mortgage is a marital debt.

1. Husband's Separate Property Claim

In the trial, the husband produced evidence that his uncle gave him $30,000 after the purchase of the residence and the husband testified that he used these funds to improve the home shortly after its purchase. The husband argues that these funds are his separate property. Separate property is defined, in part, as “property acquired before marriage or property acquired by bequest, devise, or descent, or gift from a party other than the spouse” (Domestic Relations Law § 236 [B] [1] [d] [1]); Cudar v. Cudar, 98 AD3d 279 (2d Dept 2012). The husband established that the funds originated from family gifts outside the marriage through the testimony of his uncle and the proof of the checks, made payable solely to him. However, separate property funds can be commingled with marital property and result in the separate property becoming marital property. See Keil v. Keil, 85 AD3d 1233 (3d Dept. 2010).

The Court finds, based on the preponderance of evidence, that that is what occurred here:

a. the checks were gifts to the husband, as the checks were made payable solely to the husband and thus his separate property;

b. there is no evidence that the husband ever repaid any portion of these advances from his uncle;

c. there are no promissory notes evidencing an intention to seek repayment by the uncle or an intention to repay the debt by the husband and no evidence that the uncle ever sought repayment in any manner;

d. the gifts were commingled into the marital home, as they were used for improvements in a marital asset; and,

e. there was no proof as to the value of the improvements made by the husband utilizing the funds from the uncle or any proof of an increase in the value of the marital asset after the improvements were made.

For these reasons, the Court declines to award the husband any separate property claim in the marital residence because these funds were commingled into a marital asset.

2. Status of the Residence

The couple disagree about the value of the residence and its future. The wife wants the property sold: the husband wants to buy out the wife's interest, based on recent appraisals of the home's value. The husband argues that equitable factors suggest he should retain ownership of the home: his children regard it as their home, having lived there for their entire lives and other factors.

However, the residence is a marital asset and, it is undisputed that the Rochester area is in the midst of a housing boom. Neither side disputes that properties in the price range for this house are a hot commodity, often drawing offers that significantly exceed the listing price. Faced with a hot real estate market and a conflict between the couple over the value of the house, this Court concludes that sale of the marital residence is the best — and most equitable — way to permit the couple to maximize the value of this marital asset.

The house will be sold under the following protocol:

a. within 10 days, the husband currently living in the house will prepare it in broom clean condition for sale and maintain that condition throughout the sale process;

b. with 15 days, the couple will sign a listing agreement with a realtor of their joint choice to market the property;

c. if they fail to agree on a realtor, this Court will then appoint a realtor to sell the property;

d. the realtor will inspect the property and advise the couple on any reasonable improvements or repairs necessary to maximize the sale price of the house;

e. if the repairs/improvements are reasonable, either party will advance the funds for those repairs/improvements and, at the time of sale, those advanced funds will be full reimbursed to the party who paid for them;

f. all repairs/improvements shall be completed within 10 days after the relator recommends them;

g. the realtor shall set the listing price;

h. the listing price shall remain on the property for 45 days and if there are no offers, then the listing price shall be reduced by three per cent and thereafter shall be reduced by three per cent more every 30 days until sold;

I. the husband, residing in the residence, shall fully cooperate with the realtor in taking all steps necessary to maximize the proceeds from the sale of the housing keeping the property broom clean, permitting inspections by new buyers if requested and participating in any open houses or other usual sales techniques recommended by the realtor;

j. the wife, to the extent she is required to do so, shall also fully cooperate with the realtor in taking all steps necessary to maximize the proceeds from the sale of the house;

k. after making payment of the closing costs, the payoff of the existing mortgage, the cost for any abstract redate, instrument survey, title insurance, tax apportionments, reasonable attorney's fees and any and all other expenses connected with the closing, the parties should divide the net proceeds from said sale with each party receiving 50% through the office of their respective attorneys;

l. if the husband has been making the mortgage payments on the property since the wife relocated, then he makes a claim for a credit for the pay down of the mortgage but, this Court denies such a claim as the husband has been using the wife's equity in the property (based on a $230,000 estimated fair market value minus $160,000 estimated mortgage and closing costs to be approximately $31,000) without paying her anything for it during the period he has resided there and the wife has been living elsewhere and hence, there is no claim for any mortgage pay down by the husband since the wife left the property;

m. either parent may make an offer for the purchase of the residence but it must be accepted by both owners and neither party may unreasonably refuse to accept an offer for the residence in excess of the listing price set by the realtor

B. RETIREMENT BENEFITS

The Husband has a Vanguard Target Retirement Fund as a retirement account having a balance of $19,966.91 on the date of commencement. This martial asset shall be equitably distributed between the parties by way of a qualified domestic relations order and the Wife as Alternate Payee should receive 50% of the value as of the date of commencement plus or minus gains or losses since that date.

The wife has some interest in a teacher's retirement pension. The husband may, at his own choice, elect to enter a domestic relations order to acquire the Majauskas share of such pension within 60 days of this decision or it is deemed waived.

C. PERSONAL PROPERTY

Each party will keep and be awarded all personal property in their possession except for the ice chest, trampoline and children's play set which shall be distributed to the wife in their current condition.

D. VEHICLES

Each party shall retain the vehicles currently in their possession, free from any claim by the other. Each party should be responsible and pay for all maintenance, repairs, insurance, registration, loans/liens and other ancillary expenses related to ownership of said automobile.

E. DEBTS

The Husband should assume and be responsible to pay all debt obligations solely in the name of the Husband excluding the Discover credit card ($5,925.50 as of 09/10/2019) and Lowe's credit card ($3,321.87 as of 09/11/2019). These credit cards evidenced marital debt and one half of these accounts shall be transferred to and paid by the wife. In the alternative, these debts can be paid from joint funds that are available after the closing of the sale of the marital residence. The Wife should assume and be responsible to pay all debt obligations solely in the name of the Wife. There was a dispute over a repossessed vehicle but, based on the evidence before this Court, the husband failed to prove by the preponderance of the evidence that this debt, in his name, should be equitably distributed. It remains solely his responsibility. Any alleged debt to the husband's uncle is not an enforceable debt subject to equitable distribution by this court. The couple shall indemnify and save harmless the other party from any creditor's claim for a debt that was assumed by that party.

3. PARENTING ISSUES AND THE CHILDREN

A. PARENT SCHEDULE

When boiled down, the critical dispute in this matter involves the parenting schedule: the father favors an almost daily transition plan which has been, in two forms, in effect for most of the almost three years that this couple have been separated. The couple have already agreed to joint legal custody of the children and an equal/shared time-sharing arrangement. A final Consent Order allocating holiday and vacation time with the children was entered on December 18, 2020 and does not require further determination by the Court.

In simplest form, the father favors a daily rotation of parenting time with the children alternating overnight stays with each parent commencing Monday of each week. The children would attend school — or during the summer stay for the day — with the father and then spend overnight with him. On Tuesday, the children would live with their mother and stay overnight. Wednesday would be the father's day and overnight and then Thursday would be the mother's. The couple would alternate weekends from Friday night to Monday morning. In essence, each parent would see the children every weekday, for some time, and each parent would have a four-day weekend every other week. One parent would have Thursday night through Sunday night during their weekend and the other parent would have the children from Friday night until Tuesday morning.

The father, in seeking the continuation of this schedule, argues that the routine is already underway and that the children and the parents will have a dependable and uniform schedule. The mother seeks a more conventional schedule rotating the visitation under what is commonly referred to as a “2-2-3” schedule: Monday-Tuesday with one parent, Wednesday-Thursday with the other, Friday through Sunday with the first parent and then Monday-Tuesday with the second parent, Wednesday-Thursday with the first parent and then Friday through Sunday with the second parent. Under this plan, there are fewer transitions and the children spend more continuous time in one residence. But, under this plan, the days of the week with each parent change every week: father would have Monday-Tuesday one week and then Wednesday-Thursday the next and vice versa. Under the father's proposed plan, each parent would have the same days each week.

In this Court's view, the continual transitions envisioned in the father's proposal are problematic, especially as the children age and become involved in school and community activities. The ease of a quick drive to effectuate a transition will be complicated by soccer and baseball schedules, birthday parties and other social events for the children. At older ages, when the perennial visit to a “friend's house” occurs, the complications will be even more severe. However, this Court acknowledges that such challenges impact transitions regardless of whether they occur every day or every other day.

The mother offers a more pointed and potentially potent criticism of the father when she alleges that the father has not fostered a relationship between the children and their mother while she has done that for the father. In this Court's review of the trial proof, there is insufficient credible evidence to support that conclusion. Both parents testified to strong relationships with the children, the evidence establishes that the children have embraced and complied with the access schedule set forth in the temporary order and there is no evidence that either child has been alienated or estranged from either parent.

The mother offers other complaints, arguing that the children often have behavioral issues after long periods with their father and further that third parties, including the father's significant other, have played roles in caring for the children.² This Court understands the mother's concerns but regardless of the final schedule, this father will have extended periods of time with his children on his alternate weekends, summer vacations and school holidays and any adverse behaviors, noted by the mother, may surface after those sessions as well. Given the agreed vacation/holiday schedule, it is impossible to insulate the mother from the father's impact on his children during those extended periods. In addition, the fact that a third party — the father's girlfriend — occasionally supervises the children does not militate in favor of the mother's proposed schedule. The girlfriend's role, if any, will occur during weekends when the children are with their father or even daily under either parent's preferred schedule. Modern families often utilize third parties — including unrelated significant others, relatives and babysitters — in supervising their children. Any parent involved with the significant other has a special and legally important obligation to ensure that those contacts are not adverse to the children or undercut the child's relationship with the other parent. When scanning the entire record of this trial, there is no evidence that the mother's complaints provide a basis to differentiate her plan — which involves longer periods of time each week with the father and his significant other — from the father's every-other-day schedule.

Therefore, this Court concludes that the father's preferred schedule — rotating overnights on weekdays and alternating weekends — serves the best interest of the children at this stage. First, the parents have made this schedule work during the pendency of this action and during their extended separation. For some time, the father got alternate weekends and just Tuesday night and dinner visit on Thursday. A year ago, the Court, through temporary order, extended the father's time to two overnights a week and alternate weekends, the current plan endorsed by the Court. The mother in her testimony repeatedly acknowledged that the couple “had made it work.” Second, the schedule gives the children identified days with each parent and eliminates confusion about where the children will be on any given day. Third, this schedule creates a continuity for the children: the post divorce visitation will closely mirror the visitation during the pendency of this matter.

The children shall spend time with their parents at such other times and for such other periods of time as the parents mutually agree with no consent being unreasonably withheld taking into consideration the parents work schedules, family schedules, illnesses and activities. During the holidays and school recesses the children should spend time with their parents in accordance with the Consent Order entered by the Court on 12/18/2020. The parents shall cooperate with each other in allowing the children to participate in special occasions involving members of the extended families of the children, including, but not limited to: birthday celebrations, hospitalizations, funerals, graduations, weddings, family reunions and like occasions. Whenever a parent is out of town overnight without the children, the parent shall offer the other parent the first opportunity to care for the children and such time should be in addition to any other parenting time. During any period over 24 hours when the children are ill or have been injured and the children are confined to bed, home or hospital, each parent shall have the right to visit the children in any reasonable manner.

However, because this decision mandates sale of the marital residence and the father may be required to relocate, this Court can easily foresee that the daily rotation may no longer be viable if the father relocates outside the Village of Fairport or the mother no longer resides in the nearby Village of East Rochester. For these reasons, the Court holds that if either parent relocates a distance more than three mile from the boundary of the Village of Fairport, that circumstances shall constitute a substantial change of circumstance which permits either parent to seek a modification of the parenting schedule in a court of appropriate jurisdiction.

The primary physical residence of the children should be with the Father solely for the purpose to allow the children to attend the Fairport Central School District until the end of this school year. Once the marital residence is sold as set forth herein the primary physical residence of the children shall revert to that of the Mother but the Father shall remain the primary residential parent for the purposes of schooling, provided he continues to reside in the Fairport School District. If not, then the wife shall be the primary residential parent for school purposes as well and the children shall attend the school district in which mother resides.

The parents will share transportation such that the parent whose parenting time is to commence, shall be responsible to pick up the children except the parent who has the children overnight shall be responsible to deliver the children to the other parent's home at 7:30 am for school.

This Court declines to grant either parent a right of first refusal, which would require the parent with residence with the child to offer the child to the other parent if the residential parent were unavailable to be in the child's presence for a specified period of time. In this Court's experience the right of first refusal leads to disruption of the child's schedule, confuses the children and potentially cause disputes between the parents. Under the access schedule set by the Court, each parent will have substantial time during the week to be in the children's presence and have uninterrupted time during their weekends. Given the abundance of shared time, this Court declines to grant either parent any right of first refusal.

B. The Terms of Joint Custody

1. Each parent shall be required to consult with the other in connection with the children's medical needs, schooling, religious training, extra-curricular programs, summer camps and other similar activities which substantially bear on the growth and development of the children and all such matters should be decided by mutual agreement of the parents and no reasonable request should be unreasonably denied nor should consent be unreasonably withheld.

2. Each parent shall be directly and individually entitled to complete and full information from any teacher or school which the child is attending, has attended or may attend, and to have copies of any report furnished by any such teacher or school and the opportunity to confer with the children's teachers or representatives of the school concerning the welfare of the children.

3. Each parent shall be entitled to complete, detailed information from any health agency, pediatrician, general physician, dentist, consultant or specialist attending the children for any reason whatsoever and to be furnished with copies of any reports given by any one or more of them to the other parent.

4. Each parent shall have the right to communicate with the children by telephone, facsimile, text messaging or E-Mail on a daily basis from 7pm - 7:30 pm and at such other times as the parties may agree. This communication shall be for a reasonable period, and neither parent should interfere therewith. The children should always be allowed to initiate communication with either parent at any time.

5. Neither parent will, directly or indirectly, influence the children so as to prejudice the children against the other parent which includes a parent not making derogatory, degrading or discriminatory statements and comments about the other parent in the presence of the children or allowing the children to be in the presence of third parties making such derogatory, degrading or discriminatory statements or comments.

6. While parenting the children, neither parent shall be under the influence of alcohol, illegal drugs or prescription medications to an extent that their ability to parent the children is compromised to any degree, nor should the children be in the presence of third parties in an intoxicated condition or under the influence of illegal drugs.

7. At such times a parent will be vacationing or traveling with the children, other than at the place of permanent residence, the parent should be required to notify the other parent of the date of departure, date of return, their approximate whereabouts and telephone contact information.

8. Each parent should be required to inform the other parent of important events in the life of the children having to do with school, social, athletic or extracurricular activities such as, but not limited to graduation, academic honors or achievements, plays, athletic events, scouting, recitals, and any other same or similar events as is generally recognized by parents to be of importance both to or by the children and the parents.

9. Each parent should be responsible to arrange for transportation of the children to and from such events and activities during their respective parenting periods. Both parents should be entitled to attend all such important events, extra-curricular activities and recreational activities regardless of the day on which these events may occur and regardless of the established parenting schedule.

10. Either parent should have full authority to act as legal guardian for the children in any emergency situation, however the parent physically parenting the children at the time any emergency occurs should notify and consult with the other parent as soon as may be feasible under the circumstances.

11. The Mother and Father should at all times be under a duty to notify the other of any change of residence of the children, including the exact address and telephone number where each parent may communicate with the children.

C. Child Support and Expenses for the Children

During the pendency of this matter, this Court never entered an order of support. During a conference in January of 2020, this Court directed that Plaintiff pay child support of $150.00 weekly to Defendant. Plaintiff has complied with such directive and has paid child support in the amount of $150.00 weekly since January 2020.

1. Child Support

Because the parents are splitting time with their children, the starting point for any child support analysis is the parent's income. The Court admitted the parties’ tax returns for 2019. Husband's 2019 gross annual income was $57,304.80.³ In 2019, the wife earned $50,919.00 in 2019 from a variety of sources.⁴ A major portion of the wife's income was derived from her successful cheerleading coaching career. While the wife testified that she may decline to coach cheerleading in future seasons, nonetheless, this Court, for purposes of calculating the child support at this time, relies exclusively on her 2019 income tax return. If her income varies further in the future years, she has resort to statutory adjustments

As the higher income earner, the father is considered to be the “non-custodial parent” for purposes of child support only. Bast v. Rossoff, 91 NY2d 723 (1998). Importantly, the parties combined incomes do not exceed the statutory cap of $154,000.00 in the Child Support Standards Act (CSSA). Under CSSA, the Court, after calculating combined parental income, multiples that amount by a designated percentage based on the number of children to be supported, and then allocates that amount between the parents, applying each parent's respective portion of the total income to reach the amount of each parent's support obligation. See Holterman v Holterman, 3 NY3d 1, 10-11 (2004). If the proof establishes that such an award is “unjust or inappropriate,” the Court may, after considering a series of factors, deviate from that amount. Domestic Relations Law § 240[1-b][f]; see Bast v Rossoff, 91 NY2d at 727.

The husband concedes, based on the formula, that his presumptively correct amount of child support is $254.42 weekly. Over a year, that amounts to $13,229.84 to be paid by the husband to the wife. The husband argues that series of factors justify a deviation from that amount. First, the parties’ incomes are nearly identical — the wife's 2019 income is approximately $6200 less than the husband's. Second, the parties will be equally sharing in residency of the children — a true equal time sharing arrangement. In that scenario, the husband will be providing for at least half of the children's meals, utilities, shelter and other living expenses. Third, the husband will evenly share the driving duties for the children, dropping them off and taking them to activities. Because of the slight difference in incomes, the husband will be paying a slightly higher percentage of the associated costs: health insurance, daycare, extracurriculars. Fourth, the husband will pay for child care for his daughter when she is in residency with him and he will also pay for half of son's child care.

Finally, in considering whether the presumptive amount is “appropriate,” this Court has previously utilized a net resources available analysis to examine the income-shifting consequences of a support order. See Cooper v Cooper, 2016 NY Misc. LEXIS 1087 (Sup. Ct. Monroe Cty 2016)(Dollinger, J.); E.J.L. v. K.L.L., 38 Misc 3d 389 (Sup. Ct. Monroe Cty 2012)(Dollinger, J.). In this analysis, the Court focuses on the actual net incomes — after payment of employment and income taxes — available to both parents and after the support shifts income from one parent to the other. This analysis, especially when the parents are equally dividing time and other costs, is designed to permit the Court to weight the equities of income shifting and its impact on the lives of the children in both households. The theory is that the children should be residing with a parent who has a roughly comparable financial ability to support them and pay for an assortment of expenses, including entertainment, travel and other amenities as well as extracurriculars activities and other associated costs.

In this matter, the breakdown of the couple's net incomes reveals the following: the father's net 2019 income, reduced by FICA, equals approximately $52,920. His state and federal income taxes are approximately $8,000, leaving him with $44,920 in estimated income. If he pays a full presumptive allocation of child support or more than $13,000 — as CSSA requires — he is left with less than $32,000 in available income. The wife — who has the children for the same amount of time — also pays FICA, state and federal taxes equal to approximately $10,600, reducing her available net income to approximately $40,000. The receipt of child support raises her available income to $53,000, $20,000 more than the husband's net available resources in the same year, even though he has the child literally half the time. Assuming that the husband is required to finance his share of health insurance, extracurriculars and other costs and — just as approximation — those costs equal $3000 annually, the husband net available income drops to approximately $30,000 and the wife will have more than $50,000 annually.

In this Court's view, a parent, with equal parenting responsibilities, should have access to a somewhat equal share of the family income to provide for his children. It would be unjust and unfair to require this father to finance a sum of child support that gives his soon-to-be ex-wife $15,000 to $20,000 greater share of the family's combined but limited income. This Court acknowledges that there is nothing in New York that requires this court to equalize the family incomes through child support. But, neither should a court permit the payment of child support to give one parent — with the equally shared parenting responsibilities — a disproportionate access to the family's combined income.

For the factors cited above, which were proven at trial by the father's testimony and not seriously disputed by the wife, this Court determines that a deviation is appropriate. The Court will order the payment of $100 per week in child support from the father to the mother.⁵ This amount is fair and just.

The Court, in reaching this conclusion, explicitly considers, not only the financial resources of the parents as outlined above but also:

(A) there is no evidence of any emotional or mental health issues with the children or their parents;

(B) the allocation of child support will permit the children to enjoy roughly the same standard of living in each household in which they reside for the same amount of time;

(C) there are no tax consequences;

(D) both parents can and will equally contribute to care and well-being of the children; and,

(E) neither parent needs further education.6

2. Cost for other Child Expenses

Each parent will pay their income-derived percentage of other expenses for the children. The Court determines that the husband has 53 percent of the gross income and the wife has 47 per cent. Those percentages will be used for the following costs:

a. health insurance is currently provided by the mother and the father and mother shall contribute their percentage to the difference between a single individual and a family plan to cover their children;

b. daycare or child care costs for the children during the parent's normal work hours;

C. all uninsured medical, dental, orthodontic, optical, psychological, psychiatric, mental health counseling, co-payments, prescriptions, medication and other health related expenses incurred for services or treatment rendered to the parties’ children;

d. all expenses related to the children's extra-curricular and recreational activities such as (but not limited to) sports, music lessons, dance school, school trips, summer camp and the like; and

e. given the age of the children, the issue of any parental contribution towards college expenses should be deferred until a time when each is completing their junior year of high school.

3. Method of Payment of Additional Expenses

If a party incurs such an expense and requests reimbursement or contribution payment be made to that party then that party must provide a receipt, bill, invoice or other proof of expense to the other party within 14 days from incurring the expense and the other party must make the reimbursement or contribution payment within 14 days from being provided with the receipt, bill, invoice or other proof of expense

If a party requests that the contribution payment be made directly to the provider then that party must provide a bill, invoice or other proof of expense to the other party within 14 days from receiving the same and the other party must make payment or payment arrangements directly with the provider within 14 days from being provided with the bill, invoice or other proof of expense.

4. Tax Benefits for the Children

The couple shall share any tax benefits or available federal benefits associated with their children and each parent shall have one child for such tax purposes until there is only one child available and thereafter, the parents will rotate the tax benefits of the child each year until only one child remains and thereafter they shall rotate taking the available state and federal tax benefits, if any.

D. ATTORNEYS FEES

Both parties seek attorney fees. This Court concludes that while the parties engaged in lengthy and, no doubt, expensive litigation, neither party engaged in any form of unnecessary delays or any other conduct that would warrant an award of fees. The parties are dividing equally their marital assets, neither has access to any significant separate property assets and, given the their nearly equal incomes, this Court cannot justify an award of fees to either party. Under the Domestic Relations Law, the wife may be the “lesser moneyed spouse” based on her income alone. DRL § 237(a). But the shift in net available resources occasioned by the award of child support to the wife narrows the disparity in the couple's income and undercuts any justification for further fee shifting. The trial resulted from strong bargaining positions on both sides on the issues involving access to the children and the marital interest in the primary residence. Given all these factors, the Court declines to award fees to either party.

All other request for either equitable distribution or support are denied.

SUBMIT JUDGMENT ON NOTICE 22 NYCRR 202.48.

FOOTNOTES

1.   The remaining equitable distribution factors are not pertinent to this analysis unless otherwise set forth herein. DRL § 236B(5)(d).

2.   The mother contends that the proof demonstrates that the father's girlfriend left the children unattended at a playground for some period of time and took a child for a haircut without advising the mother. The Court declines to give these incidents any significant role in its decision: they are two isolated examples over an extended period, there is no evidence that the children were adversely impacted by either episode and there is no evidence that either episode impacted the children's relationship with either their mother or their father.

3.   Plaintiff also testified that he now receives rental income of $100.00 monthly. Plaintiff did not receive that rental income in 2019 so the same is excluded from this calculation.

4.   The wife earned the following: $37,180.00 - salary from Pittsford Central School District; $775.00 - paraprofessional contract adjustment from Pittsford Central School District; $7,284.00 - coaching from Pittsford Central School District and $5,680.00 from Penfield cheer

5.   Under the net resources available analysis described above, the child support payment will reduce the father's net available resources to approximately $39,000 and the wife shall have approximately $45,000 in net resources available. The allocation is fair at this stage considering, among other factors, the wife's uncertainty over her future coaching career, which may impact her future income. Either party will have access to the statutory adjustment — three years or 15 percent change in income — to remedy any inequities in the future.

6.   This Court examined the remaining requirements for a deviation from the presumptive child support payments but finds them not relevant to this determination. DRL 240(1-a)(f) & (g).

Richard A. Dollinger, J.