How does overtime pay factor into child support? The Appellate Division just answered this decision in Ferrer v. Colon; a child support matter where both parents were police officers that typically earned a base salary, overtime pay, and income from second jobs. The case was approved for publication on June 9, 2020, meaning that it is “binding,” and that trial courts must abide by it.
The father wanted the court to impute income to the mother over and above what she had earned in the past from her salary, overtime, and second jobs. The father’s reasoning was that the mother was underemployed due to the fact that she did not work all overtime hours available to her. He asked the court to calculate her income as if she had worked all available overtime hours.
The mother argued that she was fully employed and that the court should calculate child support based on what she actually earned in past years from overtime that she actually worked, as well as second jobs.
The Appellate Division found no basis to impute additional income to the mother. In supporting its decision the Appellate Division cited the portion of the child support guidelines specifically states that “for overtime pay or income from a second job, the average is based on the prior 12 months or first receipt whichever time is greater.”
The court has the power to disregard or modify the child support guidelines, there must be “good cause” to do so. In this case, the Appellate Division decided there was no good cause. First, the court found that a person’s income for child support purposes is based on past income from overtime and second jobs. There is no requirement for a court to determine that the person had worked all available overtime. Second, the guidelines serve to protect the interests of the child and the parents. By looking at average overtime pay earned in the past, a parent cannot improperly reduce their child support obligation by working less. The parent also has the opportunity under the court rules to show that past overtime work will not be available in the future. Third, in cases where income has been imputed beyond the level of full-time employment, the imputation was based on that parent’s past practices.
The Appellate Division ultimately decided that the father had not shown good cause to modify or disregard the portions of the child support guidelines that specifically addressed income from overtime work and second jobs. The court decided that the mother’s income, for child support calculating purposes, would consist of her salary and an amount based on the average of her past earnings from overtime and second jobs.
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