Smith v. Smith, 97 A.D.3d 923 (N.Y. App. Div. 2012). · Go Syfert
Smith v. Smith, 97 A.D.3d 923 (N.Y. App. Div. 2012). Cases Citing This Book View Copy Cite
16 citation events (16 in the last 25 years) across 1 distinct court.
Strongest positive: Matter of Smisek v. DeSantis (nyappdiv, 2022-09-21) · Strongest negative: Rubin v. Della Salla (nyappdiv, 2013-04-18)
Top citers, strongest first. 6 distinct citers. How cited ↗
discussed Cited "but see" Rubin v. Della Salla
N.Y. App. Div. · 2013 · signal: but see · confidence high
Contrary to the legislative history, the child would “unfairly bear the economic burden of parental separation” (Governor’s Program Bill Mem at 1, Bill Jacket, L 1989, ch 567 at 7; see Redder v Redder, 17 AD3d 10 [3rd Dept 2005] [where parties have substantially the same amount of custodial time with the children, monied spouse found to be custodial parent]; but see Smith v Smith, 97 AD3d 923 [3rd Dept 2012]). 2 By dissenting in this case, I do not propose that the basic formula provided by the CSSA be abandoned whenever an unfair result would occur.
discussed Cited "but see" Rubin v. Della Salla
N.Y. App. Div. · 2013 · signal: but see · confidence high
Contrary to the legislative history, the child would “unfairly bear the economic burden of parental separation” (Governor’s Program Bill Mem at 1, Bill Jacket, L 1989, ch 567 at 7; see Redder v Redder, 17 AD3d 10 [3rd Dept 2005] [where parties have substantially the same amount of custodial time with the children, monied spouse found to be custodial parent]; but see Smith v Smith, 97 AD3d 923 [3rd Dept 2012]). 2 By dissenting in this case, I do not propose that the basic formula provided by the CSSA be abandoned whenever an unfair result would occur.
discussed Cited as authority (rule) Matter of Smisek v. DeSantis
N.Y. App. Div. · 2022 · confidence medium
Rubin v Della Salla , 107 AD3d at 62 [1st Dept]; Smith v Smith , 97 AD3d 923, 924 [3d Dept]; Matter of Ambrose v Felice , 45 AD3d 581 [2d Dept]; Matter of Gillette v Gillette , 8 AD3d 1102, 1103 [4th Dept]; Gainey v Gainey , 303 AD2d 628, 629-630 [2d Dept]; see generally Matter of Rapp v Horbett , 174 AD3d 1315 [4th Dept]).
discussed Cited as authority (rule) Matter of Mitchell v. Mitchell
N.Y. App. Div. · 2015 · confidence medium
If the parenting time is shared equally, then the parent with greater income is deemed to be the noncustodial parent for purposes of calculating child support (see Smith v Smith, 97 AD3d 923, 924 [2012]).
discussed Cited "see" Ryan v. Ryan
N.Y. App. Div. · 2013 · signal: see · confidence high
Upon remittal, the Support Magistrate followed this Court’s directive to calculate the presumptive support amount for the younger child — which would be owed to the mother as the custodial parent because the parties equally share physical custody and the father has the higher income ( 84 AD3d at 1516 n 1; see Smith v Smith, 97 AD3d 923, 924 [2012]; Baraby v Baraby, 250 AD2d 201, 204 [1998]) — based upon 17% of the combined parental income up to the cap of $80,000, and the presumptive amount for the older child — which would be owed to the father as the custodial parent of that child �…
discussed Cited "see" Ryan v. Ryan
N.Y. App. Div. · 2013 · signal: see · confidence high
Upon remittal, the Support Magistrate followed this Court’s directive to calculate the presumptive support amount for the younger child — which would be owed to the mother as the custodial parent because the parties equally share physical custody and the father has the higher income ( 84 AD3d at 1516 n 1; see Smith v Smith, 97 AD3d 923, 924 [2012]; Baraby v Baraby, 250 AD2d 201, 204 [1998]) — based upon 17% of the combined parental income up to the cap of $80,000, and the presumptive amount for the older child — which would be owed to the father as the custodial parent of that child �…
Retrieving the full opinion text from the archive…
Scott A. Smith
v.
Colleen Smith
Appellate Division of the Supreme Court of the State of New York.
Jul 12, 2012.
97 A.D.3d 923
Stein.
Cited by 8 opinions  |  Published
Stein, J.

Plaintiff and defendant were married in 1996 and are the parents of twin sons (born in 1996) and a daughter (born in 2004). In 2009, plaintiff commenced this action for divorce seeking, among other things, an order of custody and child support. During the pendency of the action, Supreme Court (Williams, J.) issued a temporary order after a hearing, awarding the parties joint legal custody of the children, with the children’s primary residence to be with plaintiff, subject to a set schedule of custodial time, and ordered that neither party would pay child support to the other pending a final order of the court.

Ultimately, after a trial, Supreme Court (Brown, J.H.O.) issued findings of fact and conclusions of law which provided, among other things, that it was in the best interests of the children that the parties have “joint custody with shared parenting as set forth in the existing temporary order . . . [which order] shall become the permanent order of the [c]ourt.” Supreme Court also “deemed [plaintiff] to be the non-custodial parent by virtue of his greater income for purposes of child support,” and directed plaintiff to pay an amount of support to defendant pursuant to Domestic Relations Law § 240 (1-b). The parties’ marriage was thereafter dissolved by judgment of divorce which,[*924] among other things, incorporated the findings of fact and conclusions of law.* Plaintiff now appeals.

As limited by his brief, plaintiffs appeal centers on Supreme Court’s child support determination. Specifically, plaintiff argues, among other things, that Supreme Court erroneously designated him as the noncustodial parent and required him to pay child support. We agree. It is well established that the Child Support Standards Act (see Domestic Relations Law § 240 [1-b]) is applicable to cases involving joint custody (see Bast v Rossoff, 91 NY2d 723, 726 [1998]; Riemersma v Riemersma, 84 AD3d 1474, 1475-1476 [2011]). Generally, the custodial parent for purposes of child support is the parent who has physical custody of the children for the majority of the time (see Bast v Rossoff, 91 NY2d at 728; Riemersma v Riemersma, 84 AD3d at 1475-1476). In such cases, the court may determine which parent is the custodial parent based on the “ ‘reality of the situation’ ” (Riemersma v Riemersma, 84 AD3d at 1476, quoting Bast v Rossoff, 91 NY2d at 728). It is only when “the parents’ custodial arrangement splits the children’s physical custody so that neither can be said to have physical custody of the children for a majority of the time” that the parent with the greater pro rata share of the child support obligation as calculated pursuant to the Child Support Standards Act should be identified as the noncustodial parent (Baraby v Baraby, 250 AD2d 201, 204 [1998]).

Here, Supreme Court’s judgment provides that the children’s primary physical residence is to be with plaintiff and sets a parenting schedule that undisputedly results in the children being with plaintiff 18 nights out of every 28 nights and with defendant 10 nights out of every 28 nights during the school year. For the remainder of the year, including school recesses and holidays, the parties share parenting time equally. Inasmuch as “shared” custody is not synonymous with “equal” custody and plaintiff clearly has physical custody for a majority of the time during the greater part of the year, Supreme Court incorrectly determined that plaintiff was the noncustodial parent for child support purposes by virtue of his higher income, and erred in directing plaintiff to pay child support to defendant (see Bast v Rossoff, 91 NY2d at 728; Matter of Cassano v Cassano, 85 NY2d 649, 652 [1995]; Riemersma v Riemersma, 84 AD3d at 14751476). In our view, the court should determine, in the first instance, the appropriate amount of child support to be paid by defendant to plaintiff, if any. Accordingly, we remit the matter to Supreme Court for such purpose.

[*925] Mercure, J.E, Kavanagh, McCarthy and Egan Jr., JJ., concur. Ordered that the judgment is modified, on the law, without costs, by reversing so much thereof as directed plaintiff to pay child support to defendant; matter remitted to the Supreme Court for further proceedings not inconsistent with this Court’s decision; and, as so modified, affirmed.

The judgment, however, specifically provided that the children’s primary residence would be with plaintiff.