Graby v. Graby

Green, J.

(dissenting in part). I dissent in part and would vote to affirm. I cannot agree with the majority that we can consider Social Security disability benefits paid to the children as income to the noncustodial parent. I also cannot agree that the disabled noncustodial parent is always entitled to a credit for the disability benefits paid to the children. Family Court *136properly determined that Social Security disability benefits paid to the children may not be credited against petitioner’s child support obligation absent a finding that petitioner’s share is "unjust or inappropriate” (Family Ct Act § 413 [1] [f]). That finding must be¡ based upon consideration of certain factors, including "[t]he financial resources * * * of the children]” (Family Ct Act § 413 [1] [f] [1]).

The Child Support Standards Act permits the court to adjust petitioner’s support obligation based upon the financial resources available to the children, including Social Security disability benefits, if it finds that petitioner’s share is "unjust or inappropriate.” The Act does not authorize the court either to include benefits received by the children in the disabled noncustodial parent’s income (see, Family Ct Act § 413 [1] [b] [5]) or to credit those benefits automatically against that parent’s support obligation.

Family Court’s decision is consistent with the statute. The Child Support Standards Act provides a detailed, step-by-step methodology for calculating each parent’s child support obligation (see, Mem of State Exec Dept, 1989 McKinney’s Session Laws of NY, at 2208). Alterations in the statutory scheme should be accomplished by the Legislature, not the courts.

Denman, P. J., Balio and Boehm, JJ., concur with Lawton, J.; Green, J., dissents in part and votes to affirm in a separate opinion.

Order modified, on the law, and as modified, affirmed, without costs, in accordance with the opinion by Lawton, J.