Opinion
(1012) CA 00-02864.
September 28, 2001.
(Appeal from Order of Supreme Court, Erie County, NeMoyer, J. — Support.)
PRESENT: PINE, J.P., WISNER, HURLBUTT, KEHOE AND GORSKI, JJ.
Order unanimously affirmed with costs.
Memorandum:
In this divorce action, Supreme Court properly denied plaintiff's first application for postjudgment relief, including her requests to establish defendant's basic child support obligation at $197 per week and for a judgment of arrears. In denying that application, the court properly ordered defendant to continue paying basic child support in an amount equal to 25% of his gross weekly income minus FICA, in accordance with the express terms of the parties' "Matrimonial Settlement Agreement" and the judgment of divorce.
The court also properly denied plaintiff's subsequent application for an order imputing additional income to defendant based upon his former employment. There is no basis on this record for concluding that defendant is not earning up to his potential or that he has deliberately reduced his income in order to reduce his child support obligation ( see, Petek v. Petek, 239 A.D.2d 327, 328; Martusewicz v. Martusewicz, 217 A.D.2d 926, 927, lv denied 88 N.Y.2d 801).