Opinion
34 CAF 19-01058
07-17-2020
In the Matter of John L. DRAKE, Petitioner-Respondent, v. Ann M. DRAKE, Respondent-Appellant.
D.J. & J.A. CIRANDO, PLLC, SYRACUSE (JOHN A. CIRANDO OF COUNSEL), FOR RESPONDENT-APPELLANT.
D.J. & J.A. CIRANDO, PLLC, SYRACUSE (JOHN A. CIRANDO OF COUNSEL), FOR RESPONDENT-APPELLANT.
PRESENT: PERADOTTO, J.P., CARNI, CURRAN, WINSLOW, AND DEJOSEPH, JJ.
MEMORANDUM AND ORDER It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.
Memorandum: In this proceeding pursuant to Family Court Act article 4, respondent mother appeals from an order denying her written objections to the order of the Support Magistrate, which modified a prior order of support and continued the provision of the parties' separation agreement, which was incorporated but not merged into their judgment of divorce, requiring the mother and petitioner father to contribute to their children's college expenses. We affirm.
The mother objected to the Support Magistrate's determination to impute income to her on the ground that the Support Magistrate failed to consider the totality of the circumstances, including that the mother had "experienced difficulty in maintaining employment in her field of occupation" and had never earned in excess of $55,000 working as a dental hygienist. The mother alleged that she was impacted by the turnover that was typical in her field and also by her "deteriorating health" and that the Support Magistrate also failed to consider that the mother "incurred significant liabilities," such as debts to the state and federal governments. The mother further alleged that it was a financial impossibility for her to contribute toward the college expenses of the children and that the father was "in a much better position to pay for college expenses than the [mother]." Initially, we reject the contention of the mother that the Support Magistrate erred in imputing income to her for the purpose of calculating her child support obligation. It is well settled that " ‘[c]ourts have considerable discretion to ... impute an annual income to a parent’ " ( Lauzonis v. Lauzonis , 105 A.D.3d 1351, 1351, 964 N.Y.S.2d 796 [4th Dept. 2013] ; see Matter of Monroe County Support Collection Unit v. Wills , 21 A.D.3d 1331, 1332, 801 N.Y.S.2d 650 [4th Dept. 2005], lv denied 6 N.Y.3d 705, 811 N.Y.S.2d 337, 844 N.E.2d 792 [2006] ). Furthermore, "child support is determined by the parents' ability to provide for their child rather than their current economic situation" ( Irene v. Irene [Appeal No. 2], 41 A.D.3d 1179, 1180, 837 N.Y.S.2d 797 [4th Dept. 2007] [internal quotation marks omitted]; see Matter of Bashir v. Brunner , 169 A.D.3d 1382, 1383, 93 N.Y.S.3d 481 [4th Dept. 2019] ), and "a court's imputation of income will not be disturbed so long as there is record support for its determination" ( Lauzonis , 105 A.D.3d at 1351, 964 N.Y.S.2d 796 ).
"[I]n determining a party's child support obligation, a court need not rely upon the party's own account of his or her finances, but may impute income based upon the party's past income or demonstrated earning potential" ( Belkhir v. Amrane-Belkhir , 118 A.D.3d 1396, 1397, 988 N.Y.S.2d 746 [4th Dept. 2014] [internal quotation marks omitted] ). Courts may impute income based on a party's employment history, future earning capacity, educational background, or money received from friends and relatives (see Matter of Deshotel v. Mandile , 151 A.D.3d 1811, 1812, 59 N.Y.S.3d 209 [4th Dept. 2017] ; Matter of Rohme v. Burns , 92 A.D.3d 946, 947, 939 N.Y.S.2d 532 [2d Dept. 2012] ).
Here, the Support Magistrate did not abuse her discretion by imputing income to the mother, who was working only part time and had received substantial sums of money from others, including $14,871 from the father pursuant to the parties' separation agreement, $5,000 from her second husband upon their divorce, and $20,000 in proceeds from the sale of her house in 2012. The record demonstrates that, although the mother was able to work full time and had done so in the past, she was working a maximum of 32 hours per week. Historically, however, when the mother was not able to obtain full-time hours from a single employer in her field, she supplemented her income by working nights and weekends as a waitress or retail clerk or by working at multiple dental offices. Contrary to the mother's contention that she experienced difficulty in maintaining employment as a dental hygienist due to the turnover that is typical in the industry, the record establishes that the mother was repeatedly terminated by employers for cause. To the extent the mother's financial circumstances were self-created, they provide no basis for disturbing the Support Magistrate's determination (see Matter of Grettler v. Grettler , 12 A.D.3d 602, 603, 786 N.Y.S.2d 540 [2d Dept. 2004] ).
The record does not support the mother's contention that her ability to work full time is impacted by her "deteriorating health." The mother's testimony was not substantiated or corroborated by any medical evidence, and "[t]he Support Magistrate was not obliged to accept the [mother's] unsupported testimony that a medical condition prevented [her] from working" full time ( Matter of Niagara County Dept. of Social Servs. v. Hueber , 89 A.D.3d 1433, 1434, 932 N.Y.S.2d 644 [4th Dept. 2011], lv denied 18 N.Y.3d 805, 2012 WL 400028 [2012] [internal quotation marks omitted]; see Matter of Michelle F.F. v. Edward J.F. , 50 A.D.3d 348, 349, 855 N.Y.S.2d 446 [1st Dept. 2008], lv denied 11 N.Y.3d 708, 868 N.Y.S.2d 600, 897 N.E.2d 1084 [2008] ).
We reject the further contention of the mother that the Support Magistrate abused her discretion in imputing income to the mother based on her 2017 income. In 2017, the mother worked at two dental offices earning $31 and $32 per hour, respectively, for a combined full-time schedule and income. Although the mother took a job in Olean in October 2017 and "voluntarily reduced her income ... in an effort to be closer to her children," she was terminated from that job in 2018 and moved away from the children to live in Syracuse. Thus, the Support Magistrate's imputation of additional income to the mother at a rate of $30 per hour for eight hours per week, representing the difference between the mother's part-time salary and the full-time salary that she is capable of earning, is a fair representation of the mother's demonstrated earning capacity (see Rohme , 92 A.D.3d at 947, 939 N.Y.S.2d 532 ; Wills , 21 A.D.3d at 1332, 801 N.Y.S.2d 650 ).
The mother's contention that she proved that the parties' oldest child is constructively emancipated is not preserved for our review inasmuch as it is raised for the first time on appeal (see Hueber , 89 A.D.3d at 1434, 932 N.Y.S.2d 644 ; see also Rodman v. Friedman , 112 A.D.3d 537, 537-538, 978 N.Y.S.2d 127 [1st Dept. 2013] ). In any event, that contention lacks merit because the mother failed to demonstrate that the child actively abandoned her by refusing all contact and visitation (see Matter of Barlow v. Barlow , 112 A.D.3d 817, 818, 976 N.Y.S.2d 573 [2d Dept. 2013] ; Matter of Burr v. Fellner , 73 A.D.3d 1041, 1041, 900 N.Y.S.2d 656 [2d Dept. 2010] ). Furthermore, where, as here, "it is the parent who causes a breakdown in communication with the child, or has made no serious effort to contact the child and exercise his or her visitation rights, the child will not be deemed to have abandoned the parent" ( Melgar v. Melgar , 132 A.D.3d 1293, 1294, 17 N.Y.S.3d 233 [4th Dept. 2015] [internal quotation marks omitted] ). Finally, because the mother failed to contend in her written objections to the order of the Support Magistrate that the enforcement of the provision of the parties' separation agreement requiring contribution to the children's college expenses is premature, excessive, and in violation of the Child Support Standards Act, and inasmuch as the mother did not challenge the Support Magistrate's determination of arrears on the ground that "the record indicates that [she] did not willfully violate the agreement," those contentions are not properly preserved (see Family Ct. Act § 439[e] ; Matter of Farruggia v. Farruggia , 125 A.D.3d 1490, 1490, 3 N.Y.S.3d 859 [4th Dept. 2015] ; Matter of White v. Knapp , 66 A.D.3d 1358, 1359, 886 N.Y.S.2d 527 [4th Dept. 2009] ).