Matter of Moore v. Moore

17 Citing cases

  1. Zepperi v. Madera

    56 A.D.3d 988 (N.Y. App. Div. 2008)   Cited 2 times

    ent does not dispute that he failed to pay as required by the support order, which constitutes prima facie evidence of a willful violation ( see Family Ct Act ยง 454 [a]), we need consider only whether he met his burden to present "competent, credible evidence of his inability to make the required payments" ( Matter of Powers v Powers, 86 NY2d 63, 70). While a voluntary reduction in earnings to pursue further education or training with the realistic prospect that future income will be larger and provide a greater benefit to the child may be a factor to consider in determining an award of child support ( see e.g. Matter of Robesena W. v George B.D., 145 AD2d 426, 426-427), respondent did not request a downward modification. Had he made such an application and the requisite showing of a change in circumstances, it would have been for Family Court to determine whether his plan would be in the child's interest in the long run ( see Matter of Ciostek v Ciostek, 186 AD2d 1087, 1088; see also Moore v Moore, 115 AD2d 894, 895-896). Here, on the other hand, there was evidence that respondent had failed to pay child support as ordered before he left his former employment, and his testimony about the future benefit of obtaining a college degree was purely speculative.

  2. Matter of Duerr v. Cuenin

    280 A.D.2d 903 (N.Y. App. Div. 2001)   Cited 3 times

    Here, although respondent provided the court with information concerning his salary and income for the period prior to July 1997 and the period after July 1997, he did not provide the court with any information concerning his expenses for those periods ( see, McCarthy v. McCarthy, 214 A.D.2d 1000, 1001). In addition, although respondent's salary decreased in 1997, the record establishes that respondent is employed in the family business and has some input in fixing his own salary ( see, Matter of Moore v. Moore, 115 A.D.2d 894, 895). The proper amount of support is not determined by a spouse's current economic situation but by a spouse's ability to provide ( see, Matter of Fries v Price-Yablin, 209 A.D.2d 1002, 1003; see also, Kay v. Kay, 37 N.Y.2d 632, 637).

  3. Cordell v. Cordell

    267 A.D.2d 1049 (N.Y. App. Div. 1999)   Cited 4 times

    Although plaintiff may have turned down several offers for overtime, he had not changed employment and continued to work the more lucrative third shift. Thus, the rejected overtime, if any, does not account for the reduction in income ( cf., Matter of Moore v. Moore, 115 A.D.2d 894, 895; see generally, Hickland v. Hickland, 39 N.Y.2d 1, rearg denied 39 N.Y.2d 943, cert denied 429 U.S. 941). Where, as here, the party's change in income is not within that party's control, downward modification may be appropriate ( see, Domestic Relations Law ยง 236 Dom. Rel.[B][9][b]; see also, Hickland v. Hickland, supra, at 5).

  4. Petzold v. Petzold

    259 A.D.2d 474 (N.Y. App. Div. 1999)   Cited 1 times

    Ordered that the order is affirmed insofar as appealed from, with costs. We agree with the Supreme Court that the plaintiff failed to demonstrate a change of circumstances sufficient to entitle him to a downward modification of his child support obligation ( see, Matter of Mendelson v. Winter, 255 A.D.2d 327; see also, Hickland v. Hickland, 39 N.Y.2d 1, cert denied 429 U.S. 941; Matter of Ludwig v. Reyome, 195 A.D.2d 1020; Matter of Moore v. Moore, 115 A.D.2d 894). Miller, J. P., Sullivan, Friedmann and Luciano, JJ., concur.

  5. In re Karen Prill

    237 A.D.2d 445 (N.Y. App. Div. 1997)   Cited 10 times

    The mother's cross appeal from the order dated October 19, 1995, must be dismissed as no appeal lies from an order of a Hearing Examiner where, as here, the cross-appellant has not submitted objections to the order to a Family Court Judge ( see, Family Ct Act ยง 439 [e]; Matter of Ballard v Davis, 229 AD2d 705; Matter of Mireille J. v Ernst F. J., 220 AD2d 503; Matter of Zunino v Mahoney, 204 AD2d 469; Matter of Werner v Werner, 130 AD2d 754). It is appropriate to impute income where the father has voluntarily left his employment ( see, Hickland v Hickland, 39 NY2d 1; Matter of Mireille J. v Ernst F. J., supra; Alfano v Alfano, 151 AD2d 530; Matter of Miller v Miller, 137 AD2d 536; Matter of Moore v Moore, 115 AD2d 894) or where he has hidden or refused to make his assets productive ( see, Kay v Kay, 37 NY2d 632; Matter of Fleischmann v Fleischmann, 195 AD2d 604). The facts of this case do not warrant such a finding ( see, Matter of Beck v Beck, 228 AD2d 672), and the Family Court erred in imputing income to the father.

  6. Beck v. Beck

    228 A.D.2d 672 (N.Y. App. Div. 1996)   Cited 10 times

    The mother now appeals. We agree with the Family Court's conclusion that the father has demonstrated an "unanticipated and unreasonable change in circumstances" ( Epel v. Epel, 139 A.D.2d 488; see also, Praeger v Praeger, 162 A.D.2d 671) which is substantial ( see, Matter of Boden v. Boden, 42 N.Y.2d 210; Nordhauser v. Nordhauser, 130 A.D.2d 561). Contrary to the mother's contentions, while it may be appropriate to impute income where the father has voluntarily left his employment ( see, Hickland v. Hickland, 39 N.Y.2d 1; Alfano v. Alfano, 151 A.D.2d 530; Matter of Miller v. Miller, 137 A.D.2d 536; Matter of Moore v. Moore, 115 A.D.2d 894) or where he has hidden or refused to make his assets productive ( see, Kay v Kay, 37 N.Y.2d 632; Matter of Fleischmann v. Fleischmann, 195 A.D.2d 604) the facts of the case at bar do not warrant such a finding. The mother further challenges the court's finding that the father's nonpayment in violation of the 1993 order was not willful. Willfulness requires proof of both the ability to pay support and the failure to do so ( see, Family Ct Act ยง 455).

  7. Matter of Zwick v. Kulhan

    226 A.D.2d 734 (N.Y. App. Div. 1996)   Cited 34 times

    Moreover, the $26,000 figure is supported by the record. Child support is determined by the parents' ability to provide for their child rather than their current economic situation ( see, Matter of Darling v. Darling, supra; Matter of Moore v. Moore, 115 A.D.2d 894, 896). An imputed income amount is based, in part, upon a parent's past earnings, actual earning capacity, and educational background ( see, Matter of Mireille J. v. Ernst F.J., 220 A.D.2d 502; Matter of Susan M. v Louis N., 206 A.D.2d 612, 613). The record reveals that the mother earned $13,000 in 1992 after working only part of the year.

  8. Matter of Darling v. Darling

    220 A.D.2d 858 (N.Y. App. Div. 1995)   Cited 16 times

    We reject respondent's arguments. Consistent with the general rule that child support is determined by a parent's ability to provide, rather than his or her current economic situation ( see, Matter of Moore v. Moore, 115 A.D.2d 894, 896), the Act imposes the obligation to pay child support upon parents who are "possessed of sufficient means or able to earn such means" (Family Ct Act ยง 413 [a] [emphasis supplied]). Family Court found that respondent's current economic situation did not reflect respondent's ability to earn sufficient means to pay child support.

  9. Matter of Fries v. Price-Yablin

    209 A.D.2d 1002 (N.Y. App. Div. 1994)   Cited 19 times

    Order unanimously modified on the law and as modified affirmed without costs and matter remitted to Monroe County Family Court for further proceedings in accordance with the following Memorandum: Family Court erred in modifying the Hearing Examiner's order and in granting respondent's cross petition because respondent failed to demonstrate a substantial change in circumstances sufficient to warrant a downward modification of child support. A party who causes her own inability to pay support is not entitled to a downward modification of support payments (see, Hickland v. Hickland, 39 N.Y.2d 1, cert denied 429 U.S. 941; Matter of Ludwig v. Reyome, 195 A.D.2d 1020; Matter of Moore v. Moore, 115 A.D.2d 894, 895-896). Furthermore, a parent responsible for support may not unilaterally forego employment in an attempt to evade support responsibilities (see, Matter of Ciostek v. Ciostek, 186 A.D.2d 1087, 1088; Ferlo v. Ferlo, 152 A.D.2d 980). The proper amount of support is not determined by a spouse's current economic situation but by a spouse's ability to provide (see, Kay v. Kay, 37 N.Y.2d 632, 637; Matter of Moore v Moore, supra, at 896).

  10. Southwick v. Southwick

    202 A.D.2d 996 (N.Y. App. Div. 1994)   Cited 15 times

    We modify the second decretal paragraph, therefore, to provide "that the Defendant shall pay to the Plaintiff, as and for spousal maintenance, the sum of $150.00 per week, commencing on July 9, 1993 and on each and every Friday thereafter for a period of 5 years". We further conclude that Supreme Court properly based its child support award on defendant's ability to earn rather than defendant's voluntary unemployment (see, Hickland v. Hickland, 39 N.Y.2d 1, cert denied 429 U.S. 941; Matter of Ciostek v Ciostek, 186 A.D.2d 1087, 1088; Matter of Moore v. Moore, 115 A.D.2d 894, 895-896). Supreme Court provided in the tenth decretal paragraph that income was imputed to defendant in the amount of $77,000 per year. It was error, however, for Supreme Court to direct that said income shall be imputed to defendant "for so long as the Defendant remains unemployed or earns less than $77,000.