Opinion
F- 03956-18
03-22-2019
In the Matter of a Support Proceeding TANYA O., Petitioner, v. ALEXES P., Respondent.
Wayne Crowe, Esq., 347-610-6212, Attorney for the Respondent father Anna Ognibene, Esq., 646-442-1189, Attorney for the Petitioner mother
Wayne Crowe, Esq., 347-610-6212, Attorney for the Respondent father
Anna Ognibene, Esq., 646-442-1189, Attorney for the Petitioner mother
Patria Frias-Colon, J.
On January 29, 2019 Alexes P. ("Respondent"), through his attorney, filed Objections to the December 14, 2018 Final Order of Support entered by Support Magistrate Cheryl Weir-Reeves, and served a copy of the same on Tanya O. ("Petitioner"). Respondent incorrectly argue that his Objections are timely since Petitioner mailed a copy of the Final Order of Support to the Respondent on December 27, 2018. On February 7, 2019, Petitioner filed a Rebuttal.
Pursuant to Family Court Act ("FCA") § 439 (e), the deadline by which a party must file written objection to final orders of a Support Magistrate is either thirty days from the date that the Order was received in court or by personal service or thirty-five days from the date the Order was mailed to the parties. In the instant matter, the Court file indicates that the Finding of Fact and the Order of Support dated December 14, 2018 was mailed to the parties on December 18, 2019. The deadline for filing objections was January 24, 2019. The Respondent did not file his Objections until January 29, 2019, thus the Objections must be denied as untimely.
However, even if the Respondent had timely filed his Objections, after a review of the underlying matter, including the below mentioned procedural history and audio-taped proceedings, Respondent's Objections would nonetheless be denied.
The Petitioner and the Respondent were married in 1997 and separated in 2017. On February 27, 2018, Petitioner filed a petition to establish child support for the Subject Children A.J.P. born May 31, 2003 and K.A.P. born October 30, 1999 who reside with the Petitioner. At the hearing on September 5, 2018, the Petitioner was represented by counsel and the Respondent waived counsel. The Petitioner testified that the Respondent works repairing diesel trucks including preforming brake repairs. The Petitioner entered into evidence certifications of the Respondent as a heavy-duty brake specialist and as a heavy-duty truck inspector. The Respondent testified that he worked as a mechanic's assistant who earned no more than $ 370 per 40 hour work-week. Support Magistrate Weir-Reeves adopted the Department of Labor's Occupation Employment Statistics for Bus and Truck Mechanic, Diesel Engine Specialist for the New York City, White Plains, New York-New Jersey Metropolitan area to impute $ 58,350 in annual income to the Respondent. Support Weir-Reeves deviated from the Child Support Standards Act ("CSSA") Basic Support Obligation of $ 324.64 per week and ordered the Respondent to pay $ 253.00 per week of child support to the Support Collection Unit ("SCU").
The Respondent objected to the Final Order of Support and Findings of Fact and argued the payment under the Final Order of Support is more than the Respondent currently makes and that there is no evidence in the record to support that the Respondent's past earnings or demonstrated earning potential can support the income imputed to him to calculate the Final Order of Support. The Petitioner agreed with the Final Order of Support and argued that Support Magistrate Weir-Reeves was correct to impute the income to the Respondent since she was in the best position to assess the parties' demeanor and assess their credibility and that Support Magistrate Weir-Reeves has considerable discretion whether to impute income to a parent.
A Family Court Judge's review of a Support Magistrate's Order is essentially equivalent to an appellate review of such an order. Green v. Wron , 151 Misc 2d 9, 571 N.Y.S. 2d 193 (Fam. Ct., NY Cty. 1991). The scope of that review is confined to whether the Support Magistrate, as the trier of fact, has made the necessary Findings of Fact and an Order and whether, upon review of the record, the Findings of Fact present a reasonable basis for that Order. The Support Magistrate is granted broad discretion in evaluating the evidence and, therefore, his or her findings are entitled to great deference. Creem v. Creem , 121 AD2d 676, 504 N.Y.S.2d 44 (2nd Dept. 1986). The determination of the Support Magistrate should not be disturbed upon objection unless no fair interpretation of the evidence can support the findings. Stone v. Stone , 236 AD2d 615, 652 N.Y.S. 2d 824 (2nd Dept. 1997); Reed v. Reed , 240 AD2d 951, 659 N.Y.S 2d 334 (3rd Dept. 1997).
Family Court has the discretion to impute income based upon a parent's employment experience and earning capacity and a parent's failure to seek employment that is commensurate with his or her education, skills or experience. Anderson v. Harris , 68 AD3d 472 (1st Dept. 2009). There must be an evidentiary basis in fact to determine what a parent can actually earn to impute income. Anderson v. Harris , supra. In exercising the discretion to impute income, a Support Magistrate is required to provide a clear record of the source from which the income is imputed and the reasons for the imputation. Anderson v. Harris (Id. ), citing Helen T. v. Richard F.G. , 17 AD3d 684 (2nd Dept. 2005).
In Kasabian v. Chichester , the Support Magistrate appropriately used statistics from the United States Department of Labor to impute the Respondent's income when the Magistrate had determined that the Respondent's "testimony on the whole lacked credibility." Kasabian v. Chichester , 72 AD3d 1141, 898 N.Y.S. 2d 293, 294 (3 d Dept 2010). The Appellate Division found that this imputation of the average amount earned by a general freight trucker was appropriate, even with no evidence that the Respondent had actually attempted to obtain employment as a commercial trucker. Id.
This Court finds no basis in law and in fact to disturb Support Magistrate Weir-Reeves's findings, who was in the best position to assess the credibility of the witnesses and the evaluate the evidence presented. Support Magistrate Weir-Reeves's created a clear detailed record to impute income from the Respondent's certifications and skill set are supported by the Petitioner's testimony and documentary evidence as discussed in the Findings of Fact that described the Respondent received large cash payments off the books from his employer and a $ 375.00 on the books payment each week. Based on the testimony and evidence presented, the record provides Support Magistrate Weir-Reeves issued an appropriate Final Order of Support.
Respondent questions whether Support Magistrate Weir-Reeves made either a mistake of law or mistake of fact when she imputed income from statistics from the United States Department of Labor into his share of the instant Child Support Order. The record supports Support Magistrate Weir-Reeves findings that the Respondent was employed as Mechanic, as declared on the tax returns he submitted to the IRS. That his reported income of $ 375.00 for a 40 hour work-week as a Mechanic's Assistant is substantially less than his potential capacity to earn and possibly his actual earnings. Finally, Support Magistrate Weir-Reeves did not find the Respondent credible.
The Decision and Order of Support Magistrate Weir-Reeves are affirmed.
Mongelluzzo v. Sondgeroth , 95 AD3d 1332, 1332, 944 N.Y.S.2d 908 (2d Dept. 2012.)