You really need to put that in the petition. It is really a case to argue before the court. In high income cases, the court should consider the statutory factors and not mechanically apply the income cap. “In calculating the award of child support to defendant under Domestic Relations Law § 240 (1-b), the trial court properly set the total child support obligation at an amount that would enable the child to significantly enjoy aspects of the parties' marital standard of living, to enhance her development, to fully provide for her education, her physical and psychological health, and consistent with the social milieu in which she is raised. In this connection, we note that consideration of the child's actual needs with reference to the prior standard of living continues to be appropriate in determining an award of child support on parental income in excess of $ 80,000.” Anonymous v. Anonymous, 286 A.D.2d 585 (N.Y. App. Div. 1st Dep't 2001).
In the decision of Beth M. v. Joseph M, Justice Ruth Balkin, before her elevation to the Appellate Division set forth the factors to consider in a high income case. “Consequently, where the combined parental income exceeds $ 80,000, as here, the statute requires the Court to determine whether additional child support is appropriate by reason of the parental income in excess of the basic child support limit and, if so, "through consideration of the factors set forth in paragraph (f) * * * and/or the child support percentage" (Domestic Relations Law § 240[1-b][c] ). The "paragraph (f)" factors include the financial resources of the parents and child, the health of the child and any special needs, the standard of living the child would have had if the marriage had not ended, tax consequences, non-monetary contributions of the parents toward the child, the educational needs of the parents, the disparity in the parents' incomes, the needs of other nonparty children receiving support from one of the parents, extraordinary expenses incurred in exercising visitation and any other factors the court determines are relevant (Domestic Relations Law § 240[1-b][f]). After considering the circumstances of the parties, the Court may apply the paragraph (f) factors, or the statutory formula, or a combination of both.” 12 Misc. 3d 1188(A); 824 N.Y.S.2d 760; 2006 N.Y. Misc. LEXIS 2075; 2006 NY Slip Op 51490(U) (Sup Ct. Nassau Co. 2006).
In the seminal case of Cassano v. Cassano, 85 NY2d 649 (1995), Judge Judith Kaye set forth that the decision whether to impose the income cap or not is in the discretion of the court. In that decision she focused on the language of Family Court Act § 413 (1)(c)(2), (DRL § 240 [1-b] [c]): As to combined parental income over $ 80,000, the statute explicitly affords an option: the court may apply the factors set forth insection 413 (1) (f) "and/or the child support percentage" (Family Ct Act § 413  [c] ; Pertinent as well to income above $ 80,000 is the provision that the court may disregard the formula if "unjust or inappropriate" but in that event, must give its reasons in a formal written order, which cannot be waived by either party (Family Ct Act § 413  [g])… n that legislative purpose, not linguistic perfection, guides our determination, we must seek to give meaning to the term "and/or," in the context of the statute's over-all objective. Defendant's insistence on an elaboration of needs-based reasons reads the word "or" out of the section and rolls back the calendar to pre-1989 law. In our view, "and/or" should be read to afford courts the discretion to apply the "paragraph (f)" factors, or to apply the statutory percentages, or to apply both in fixing the basic child support obligation on parental income over $ 80,000. That interpretation is consistent with the language of the section and with the objectives of the Child Support Standards Act. “ Supra at 655.
Then you should argue off of the factors in sub paragraph (f). The current cap is $136,000.
What to include in a petition, depends upon the facts of your case and what standard of law is to be applied. Unanticipated change of circumstances or an inability to meet the needs of a child is the standard if there was an agreement (incorporated in a judgment of divorce) executed prior to October 14, 2010. If there was no agreement and only an order after the trial, the standard is "a change of circumstances". There are other provisions that also apply depending upon your particular facts.
There is no such thing as "a supplementary petition". Rather, if you seek to change the petition, you must file an amended petition with additional allegations, not "a supplementary petition".
You should get a lawyer. Spending time learning about child support does not in any manner substitute for competent experienced legal representation.
Advice on this forum is for informational purposes only and should never be mistaken as a substitution for legal advice. Answering a question does not create an attorney client relationship. If you need legal advice, you should consult or retain legal counsel.
Petitions are very fact specific, so you will not find a model petition with all the bells and whistles that you will need. What is the basis for the request for an upward modification? How old is the current child support order? Was there a valid deviation from the Child Support Standards Act? Was it a consent order, part of a separation agreement, or judgment of divorce after a trial? More facts are need to properly respond. You could apply for a public defender to help you in family court on the support issue, if you cannot afford an attorney.
You may want to check with the Erie County assigned counsel program to see if you may be eligible for an assigned attorney. Certain parties are eligible for assigned attorneys depending on the matter in issue.
This communication is intended only to provide general information. No attorney-client relationship is created.
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