        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

402
CA 11-01596
PRESENT: SMITH, J.P., FAHEY, PERADOTTO, LINDLEY, AND WHALEN, JJ.


KEVIN ANDREW LEONARD, PLAINTIFF-RESPONDENT,

                    V                                OPINION AND ORDER

TERRI LYNN LEONARD, DEFENDANT-APPELLANT.


TREVETT CRISTO SALZER & ANDOLINA P.C., ROCHESTER (ROBERT J. LUNN OF
COUNSEL), FOR DEFENDANT-APPELLANT.

MAUREEN A. PINEAU, ROCHESTER, FOR PLAINTIFF-RESPONDENT.

MATTHEW J. FERO, ATTORNEY FOR THE CHILDREN, ROCHESTER.


     Appeal from a judgment of the Supreme Court, Monroe County (John
M. Owens, J.), entered December 7, 2011. The judgment, inter alia,
granted sole legal custody of the parties’ children to plaintiff.

      It is hereby ORDERED that the judgment so appealed from is
unanimously modified on the law by vacating the award of child support
to plaintiff and the provision concerning counsel fees and as modified
the judgment is affirmed without costs and the matter is remitted to
Supreme Court, Monroe County, for a determination of the amount of
child support to be awarded to defendant and for further proceedings
concerning counsel fees in accordance with the following Opinion by
LINDLEY, J.: In this matrimonial action, defendant wife appeals from
an order issued by the Judicial Hearing Officer (JHO) who presided
over the parties’ nonjury trial. Defendant attributes multiple errors
to the JHO, whose order was later subsumed in a judgment of divorce
entered in Supreme Court. Although no appeal lies from the order, “we
exercise our discretion to treat the notice of appeal as valid and
deem the appeal [as] taken from the judgment” (Hughes v Hughes, 84
AD3d 1745, 1746; see CPLR 5520 [c]; Nichols v Nichols [appeal No. 1],
291 AD2d 875, 875).

     We reject defendant’s challenge to the JHO’s custody
determination, which awards sole legal custody of the parties’ two
children to plaintiff father, with shared physical custody. Pursuant
to the residency schedule set by the JHO, the parties spend equal time
with the children. Defendant does not object to the residency
schedule, but instead contends that the parties should have been
awarded joint legal custody. We reject that contention. The evidence
at trial established that the parties have an acrimonious relationship
and are not able to communicate effectively with respect to the needs
and activities of their children, and it is well settled that joint
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                                                         CA 11-01596

custody is not feasible under those circumstances (see Matter of
Orzech v Nikiel [appeal No. 1], 91 AD3d 1305, 1305-1306; Matter of
York v Zullich, 89 AD3d 1447, 1448; Matter of Vasquez v Barfield, 81
AD3d 1398, 1399). Although, as defendant suggests, the JHO could have
fashioned a custody award whereby each parent has sole decision-making
authority over certain aspects of the children’s lives (see Matter of
Delgado v Frias, 92 AD3d 1245, 1245; Wideman v Wideman, 38 AD3d 1318,
1319; see also Chamberlain v Chamberlain, 24 AD3d 589, 591-592), it
cannot be said that the JHO abused his discretion in refusing to do so
(see Wideman, 38 AD3d at 1319; see generally Braiman v Braiman, 44
NY2d 584, 589-590). We note that, although the Attorney for the
Children proposed a “zones of influence” custody arrangement at trial,
he has since changed his position and, in his brief on appeal, he
seeks affirmance of the judgment insofar as it awards sole legal
custody to plaintiff.

     We agree with defendant, however, that the court erred in
awarding child support to plaintiff and that the court instead should
have awarded child support to her. It is well settled that in shared
residency arrangements, where neither parent has the children for a
majority of the time, the party with the higher income is deemed to be
the noncustodial parent for purposes of child support (see Matter of
Disidoro v Disidoro, 81 AD3d 1228, 1229, lv denied 17 NY3d 705;
Eberhardt-Davis v Davis, 71 AD3d 1487, 1487-1488; Matter of Moore v
Shapiro, 30 AD3d 1054, 1055; Baraby v Baraby, 250 AD2d 201, 204; see
generally Bast v Rossoff, 91 NY2d 723, 726-727). Here, as noted, the
residency schedule affords the parties equal time with the children,
and thus neither party has the children for the majority of the time.
Inasmuch as plaintiff’s income exceeds that of defendant — at the time
of trial, plaintiff earned $134,924.48 annually, while the JHO imputed
income of $25,000 to defendant, whose actual earnings were $14,109.53
— plaintiff is the “noncustodial” parent and, as such, he must pay
child support to defendant.

     It is true, as plaintiff points out, that the above-cited cases
involve awards of joint legal custody, whereas he was awarded sole
legal custody; that fact, however, should not affect the child support
determination. Although the award of sole legal custody to plaintiff
allows him to make important decisions in the children’s lives, that
decision-making authority does not increase his child-related costs.
A parent’s child-related costs are dictated by the amount of time he
or she spends with the children, and, here, plaintiff spends no more
time with the children than does defendant. We note, moreover, that
there is already a significant disparity in the parties’ incomes, and
an award of child support to plaintiff would only widen that gulf. In
our view, the children’s standard of living should not vary so
drastically from one parent’s house to the other.

     Thus, under the circumstances of this case — where plaintiff has
sole legal custody, but the residency schedule affords the parents
equal time with the children — an award of child support to defendant
will best “assure that [the] children will realize the maximum benefit
of their parents’ resources and continue, as near as possible, their
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                                                         CA 11-01596

preseparation standard of living in each household” (Baraby, 250 AD2d
at 204). We therefore conclude that the judgment should be modified
accordingly, and the matter is remitted to Supreme Court for a
determination of the appropriate amount of child support to be awarded
to defendant.

     We reject defendant’s further contention that she was entitled to
an award of maintenance. Considering the factors set forth in
Domestic Relations Law § 236 (B) (6) (a), we conclude that the JHO’s
determination with respect to maintenance is supported by the record
(see generally Hartog v Hartog, 85 NY2d 36, 50-51; cf. Larsen v
Larsen, 270 AD2d 20, 20-21).

     In her remaining contention, defendant asserts that JHO failed to
set forth the required reasons for the denial of her request for an
award of counsel fees, and that the provision concerning counsel fees
must therefore be vacated. We agree. There is a “rebuttable
presumption that counsel fees shall be awarded to the less monied
spouse” (Domestic Relations Law § 237 [a]; see Piacente v Piacente, 93
AD3d 1189, 1189), and defendant herein is by far the less monied
spouse. The JHO was thus required to articulate why defendant is not
entitled to an award of counsel fees (see generally Cheruvu v Cheruvu,
61 AD3d 1171, 1174-1175). We therefore conclude that the judgment
should be further modified by vacating the provision concerning
counsel fees, and the matter should be further remitted to Supreme
Court to “articulate its reasons for [its] denial [of an award of
counsel fees to defendant] or, in the alternative, to reconsider its
determination” (id.; see generally McCoy v McCoy, 254 AD2d 732, 733;
Mann v Mann, 244 AD2d 928, 930).

     Accordingly, we conclude that the judgment should be modified and
the matter should be remitted to Supreme Court in conformance with our
decision herein.




Entered:   June 28, 2013                        Frances E. Cafarell
                                                Clerk of the Court
