Opinion
2014-07-2
In the Matter of Berta Alicia BUSTAMANTE, respondent, v. Patrick F. DONAWA, appellant.
Patrick F. Donawa, New York, N.Y., appellant pro se. Berta Bustamante, Brooklyn, N.Y., respondent pro se.
Patrick F. Donawa, New York, N.Y., appellant pro se. Berta Bustamante, Brooklyn, N.Y., respondent pro se.
In a child support proceeding pursuant to Family Court Act article 4, the father appeals from an order of the Family Court, Kings County (Katz, J.), dated December 11, 2012, which denied his objections to an order of the same court (Palos, S.M.), dated August 28, 2012, which, after a hearing, granted the mother's petition for an upward modification of his child support obligation set forth in an amended child support order dated August 4, 2008.
ORDERED that the order dated December 11, 2012, is affirmed, with costs.
The father contends that the Support Magistrate erred in basing his support obligation for the couple's child on an annual income of $54,342, as reflected in his 2011 tax returns arising out of his former occupation as a Traffic Device Maintainer, rather than on his annual income of $31,756.40, as reflected in his most recent pay stub arising out of his current occupation as an Emergency Medical Technician. The father's contention is without merit.
“The level of child support is determined by the parents' ability to provide for their children rather than their current economic situation” ( Signorile v. Signorile, 102 A.D.3d 949, 951, 958 N.Y.S.2d 476;see Gorelik v. Gorelik, 71 A.D.3d 730, 731, 895 N.Y.S.2d 717;Bigler v. Bigler, 299 A.D.2d 435, 436, 749 N.Y.S.2d 733;Matter of Zwick v. Kulhan, 226 A.D.2d 734, 641 N.Y.S.2d 861). “The court is not required to rely on a party's account of his or her finances, and may instead impute income based on the party's past income or demonstrated earning potential” ( Siskind v. Siskind, 89 A.D.3d 832, 834–834, 933 N.Y.S.2d 60). “ ‘A support magistrate is afforded considerable discretion in determining whether to impute income to a parent ... and that determination may properly be based upon a parent's prior employment experience’ ” (Matter of Genender v. Genender, 51 A.D.3d 669, 670, 858 N.Y.S.2d 673, quoting Matter of Bibicoff v. Orfanakis, 48 A.D.3d 680, 681, 852 N.Y.S.2d 324;see Morille–Hinds v. Hinds, 87 A.D.3d 526, 528, 928 N.Y.S.2d 727;Matter of Gebaide v. McGoldrick, 74 A.D.3d 966, 967, 901 N.Y.S.2d 857;Matter of Moran v. Grillo, 44 A.D.3d 859, 861, 843 N.Y.S.2d 674;Matter of Thompson v. Perez, 42 A.D.3d 503, 504, 838 N.Y.S.2d 789).
Under the circumstances of this case, it was appropriate to impute income where, as here, the father voluntarily left his employment ( see Goddard v. Goddard, 256 A.D.2d 545, 546, 682 N.Y.S.2d 423;Matter of Diamond v. Diamond, 254 A.D.2d 288, 289, 678 N.Y.S.2d 127;Matter of Prill v. Mandell, 237 A.D.2d 445, 446, 655 N.Y.S.2d 78). “While a parent is entitled to attempt to improve his vocation, his children should not be expected to subsidize his decision” (Matter of Doyle v. Doyle, 230 A.D.2d 795, 796, 646 N.Y.S.2d 372;see Matter of Yourman v. Yourman, 216 A.D.2d 308, 308–309, 627 N.Y.S.2d 746;Alfano v. Alfano, 151 A.D.2d 530, 531, 542 N.Y.S.2d 313).
The Support Magistrate providently exercised his discretion in imputing income to the father based on his earning capacity ( see Matter of Lanasa v. Lanasa, 95 A.D.3d 890, 942 N.Y.S.2d 889;Matter of Moran v. Grillo, 44 A.D.3d at 861, 843 N.Y.S.2d 674). Accordingly, the Family Court properly denied his objections to the order dated August 28, 2012, which granted the mother's petition for an upward modification of his child support obligation ( see Matter of Tosques v. Ponyicky, 89 A.D.3d 1097, 1098, 933 N.Y.S.2d 579). RIVERA, J.P., BALKIN, CHAMBERS and MILLER, JJ., concur.