Opinion
CAF 01-01494
February 1, 2002.
Appeal from an order of Family Court, Erie County (Szczur, J.), entered August 22, 2000, which denied petitioner's objection to that part of the order of the Hearing Examiner determining respondent's child support obligation.
LAVIN KLEIMAN, P.C., BUFFALO (JOHN J. LAVIN OF COUNSEL), FOR PETITIONER-APPELLANT.
PRESENT: PIGOTT, JR., P.J., GREEN, HAYES, SCUDDER, AND GORSKI, JJ.
It is hereby ORDERED that the order so appealed from be and the same hereby is unanimously modified on the law by granting petitioner's objection and vacating that part of the order of the Hearing Examiner determining respondent's child support obligation and as modified the order is affirmed without costs and the matter is remitted to Family Court, Erie County, for further proceedings in accordance with the following Memorandum:
We agree with petitioner that Family Court erred in failing to consider that portion of respondent's personal injury award consisting of lump-sum payments at five-year intervals, including the initial lump-sum payment of $500,000, in determining respondent's child support obligation ( see, Matter of Ogborn v. Hilts, 262 A.D.2d 857, 859; Matter of Grennier v. Breason, 256 A.D.2d 812). Contrary to respondent's contention, neither Family Court Act § 413 (1) (e) nor § 413 (1) (b) (5) precludes the court from considering that source of income. We note in addition that other non-recurring lump sums have been considered in determining child support ( see, Matter of Cody v. Evans-Cody, 291 A.D.2d 27 [decided Dec. 24, 2001]; Matter of Duguay v. Paoletti, 279 A.D.2d 767, 768-769; Matter of Bryant v. Bryant, 235 A.D.2d 116, 119). We therefore modify the order by granting petitioner's objection and vacating that part of the order of the Hearing Examiner determining respondent's child support obligation and remit the matter to Family Court, Erie County, to determine respondent's child support obligation in accordance with our decision herein.