In a case of first impression, the Fourth Department Appellate Division determined that military allowances for food and housing constitute “income” for the purpose of calculating a parent’s child support obligation. In Massey v. Evans, 2009 NY Slip Op 06933, (4th Dep’t 2009), the mother commenced a support proceeding. The parties stipulated that the father earned base pay from active military duty in the amount of $22,186 per year. The parties further stipulated that, in addition to base pay, the father receives BAH in the amount of $10,776 per year and BAS in the amount of $3,533 per year. BAH is a monthly allowance paid by the military to members who reside off base in government-supplied housing. The amount of BAH varies according to the member’s pay grade, geographic location and dependency status. BAS is a monthly allowance paid to active duty military members to subsidize the cost of meals purchased for his or her benefit on or off base. The amount of BAS allowance is based upon average food costs as determined by the federal government.
The Support Magistrate determined that the BAH and BAS allowances were includable in the father’s income to determine his child support obligation, reasoning that the allowances are additional resources available to the father and intended to offset the cost of his meals and lodging. The father filed written objections to the Support Magistrate’s order, arguing that BAH and BAS are excludable from income for federal tax purposes. The Family Court denied the father’s objections and affirmed the order of the Support Magistrate. On appeal, the Appellate Division affirms the finding of the Family Court.
Family Court Act §413(1)(b)(5) states that a parent’s income includes, but is not limited to, gross income as report on the most recent federal income tax return and, to the extent not reflected in that amount, income received from other sources, such as workers’ compensation, disability benefits, unemployment insurance benefits and veterans benefits. Courts are also given considerable discretion to attribute or impute income from such other resources as may be available to the parent, including “meals, lodging, memberships, automobiles or other perquisites that are provided as part of compensation for employment to the extent that such perquisites constitutes expenditures for personal use…” The Appellate Division determined that the father’s allowances received from the military fall with the statute’s broad definition of income. Parental income is not limited only to taxable income, but includes such allowances as the father receives from his military duty.
