FURO v. VICTORY

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

Louise FURO, Petitioner-Respondent, v. Nasser VICTORY, Respondent-Appellant.

Decided: October 27, 1998

Before SULLIVAN, J.P., ROSENBERGER, NARDELLI, WILLIAMS and ANDRIAS, JJ. Susan L. Bender, for Petitioner-Respondent. Judith B. Yaeger, for Respondent-Appellant.

Order, Family Court, New York County (Sheldon Rand, J.), entered on or about June 23, 1997, which, to the extent appealed as limited by respondent-appellant's brief, denied his objections and confirmed a Hearing Examiner's decision and supplemental decision ordering respondent to pay child support in the amount of $1,808 per month for the subject child, unanimously modified, on the law and the facts, respondent's objections granted to the extent of requiring the deduction of $60,000 from the combined parental income pursuant to Family Court Act §§ 413(1)(b)(5)(vii)(B) and (D), resulting in an award of $951.85 per month for the subject child, and otherwise affirmed, without costs.

 On this record, the Hearing Examiner's calculation of respondent's actual income was not unjust (see, e.g., Isaacs v. Isaacs, 246 A.D.2d 428, 667 N.Y.S.2d 740), and since determination of actual parental income permits the use of the statutory percentage, the needs of the subject child are irrelevant insofar as the first $80,000 of combined parental income is concerned (see, Jones v. Reese, 227 A.D.2d 783, 784, 642 N.Y.S.2d 378).  We agree with respondent, however, that the court erred in declining to reduce the parental income figure by $60,000, since respondent's 1995 tax return indicates that that amount was “actually paid” by respondent as maintenance and child support to his former wife (see, Family Ct. Act §§ 413[1][b][5][vii] [B] and [D] ).   Accordingly, the combined parental income figure should have been $85,050, of which the father's pro rata share is 79%.   Using the statutory percentage of 17%, which we find to have been correctly applied, the father's pro rata share of support is $11,422.22 annually, or $951.85 per month.   As to the amount by which the combined parental income exceeds $80,000 (see, Family Ct. Act § 413[1][c] ), we find that the Hearing Examiner articulated a valid basis for continuing to apply the statutory percentage, rather than considering factors including the subject child's actual needs (see, e.g., Lo Macchio v. Lo Macchio, 247 A.D.2d 539, 669 N.Y.S.2d 308).   We have considered respondent's remaining arguments and find them to be without merit.

MEMORANDUM DECISION.