Matter of Gathers v. Gathers

Matter of Gathers v Gathers 2026 NY Slip Op 05531 September 30, 2026 Appellate Division, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This decision is uncorrected and subject to revision before publication in the Official Reports. In the Matter of Violet Rebecca Gathers, respondent, v David Luton Gathers, appellant. Supreme Court of the State of New York, Appellate Division, Second Judicial Department Decided on September 30, 2026 2026-00072, (Docket No. F-20858-08/22K) Angela G. Iannacci, J.P. Helen Voutsinas Donna-Marie E. Golia James P. McCormack, JJ. David Luton Gathers, Peekskill, NY, appellant pro se. Violet Rebecca Gathers, respondent pro se. [*1] DECISION & ORDER In a proceeding pursuant to Family Court Act article 4, the father appeals from an order of the Family Court, Kings County (Jacqueline D. Williams, J.), dated November 25, 2025. The order, insofar as appealed from, denied the father's objections to so much of an amended order of the same court (Nicholas J. Palos, S.M.) dated October 1, 2025, as, after a hearing, directed the father to pay basic child support in the sum of $1,096 biweekly. ORDERED that the order dated November 25, 2025, is reversed insofar as appealed from, on the law and in the exercise of discretion, without costs or disbursements, the father's objections to so much of the amended order dated October 1, 2025, as directed him to pay basic child support in the sum of $1,096 biweekly are granted, that portion of the amended order dated October 1, 2025, is vacated, and the matter is remitted to the Family Court, Kings County, for a new calculation of the father's basic child support obligation in accordance herewith; and it is further, ORDERED that in the interim, the father shall pay basic child support in the sum of $1,096 biweekly. The parties are the parents of one child, born in 2006. In an order dated July 5, 2017, the father was directed, inter alia, to pay basic child support in the sum of $324 biweekly. In March 2022, the mother filed a petition for an upward modification of the father's child support obligation. After a hearing, in an order dated June 4, 2025, the Support Magistrate, among other things, directed the father to pay basic child support in the sum of $1,505 biweekly based on an income of $252,166.34. The father filed objections to the Support Magistrate's order. In an order dated August 7, 2025, the Family Court remanded the father's objections to the Support Magistrate to articulate the Support Magistrate's reasons as to how he calculated the father's income. In an amended order dated October 1, 2025 (hereinafter the amended order), the Support Magistrate, inter alia, directed the father to pay basic child support in the sum of $1,096 biweekly based on an income of $185,613.22. Thereafter, the father filed objections to the amended order, arguing, among other things, that the Support Magistrate erred in calculating his income by treating a one-time "holiday payment" in the sum of $2,447.69 as a recurring biweekly payment. In an order dated November 25, 2025, the Family Court, inter alia, denied the father's objections. The father appeals. "In support proceedings, the Support Magistrate is required to begin the support calculation with the parent's gross income 'as should have been or should be reported in the most recent federal income tax return'" (Matter of Fleming v McCloskey, 173 AD3d 865, 867, quoting Family Ct Act § 413[1][b][5][i]). The Support Magistrate "may also consider income for the tax year not yet completed" (Matter of Lynn v Kroenung, 97 AD3d 822, 822). The Family Court erred in denying the father's objections. The Support Magistrate determined that the father's income for child support purposes was $185,613.22. That sum was based on the year-to-date figures on a pay stub for the two-week period ending on January 25, 2025, which included the one-time holiday payment. Under the circumstances of this case, the Support Magistrate should have treated this one-time payment as a nonrecurring event and excluded that payment from the father's income for child support purposes (see Matter of Muselevichus v Muselevichus, 40 AD3d 997, 999; Gina P. v Stephen S., 33 AD3d 412, 414; Skinner v Skinner, 271 AD2d 679, 680). Accordingly, we remit the matter to the Family Court, Kings County, for a recalculation of the father's basic child support obligation. IANNACCI, J.P., VOUTSINAS, GOLIA and MCCORMACK, JJ., concur. ENTER: Darrell M. Joseph Clerk of the Court