Opinion
03-24-2016
In the Matter of Stella McKENNA, Respondent, v. Daniel McKENNA, Appellant.
Wayne P. Smith, Schenectady, for appellant.
Wayne P. Smith, Schenectady, for appellant.
Opinion
PETERS, P.J.
Appeal from an order of the Family Court of Schoharie County (Bartlett III, J.), entered January 17, 2014, which, among other things, granted petitioner's application, in a proceeding pursuant to Family Ct. Act article 4, for an order of child support.
Petitioner (hereinafter the mother) and respondent (hereinafter the father) are the parents of two children (born in 1997 and 1998). When this matter was last before us, we vacated an April 2008 stipulated order establishing the father's child support obligation on the ground that it failed to comply with the Child Support Standards Act (see Family Ct. Act § 413) and remitted the matter to Family Court for further proceedings (90 A.D.3d 1110, 933 N.Y.S.2d 453 [2011] ). Following a hearing, a Support Magistrate imputed approximately $18,000 in income to the father in addition to his reported income of $22,553 for the 2011 tax year at issue, established his monthly child support obligation and ordered him to pay $197 per month towards the children's health insurance. Upon review, Family Court denied the father's objections to the Support Magistrate's imputation of income, but reduced his monthly contribution towards the children's health insurance to $156. The father now appeals from that order, challenging both the imputation of income and his obligation to contribute towards his children's health insurance.
While this appeal was pending, the father filed a petition to modify the order at issue. The parties resolved the matter on consent, resulting in an August 2014 order that reduced the father's contribution towards the children's health insurance to $60 per month—thereby modifying the directive we are now asked to review—without any reservation of the father's rights with respect to the instant appeal. Thus, that portion of the appeal challenging the father's health insurance contribution has been rendered moot (see Matter of Schermerhorn v. Quinette, 28 A.D.3d 822, 823, 812 N.Y.S.2d 698 [2006]; Matter of Carnevale–Martin v. Stone, 241 A.D.2d 779, 780, 660 N.Y.S.2d 1020 [1997]; Matter of Ballard v. Parker, 232 A.D.2d 740, 741, 648 N.Y.S.2d 481 [1996]; compare Matter of Claflin v. Giamporcaro, 75 A.D.3d 778, 779, 904 N.Y.S.2d 580 [2010], lv. denied 15 N.Y.3d 710, 909 N.Y.S.2d 694, 936 N.E.2d 461 [2010] ). The August 2014 order otherwise continued the child support obligation set forth in the order on appeal and included no language providing that it superceded all prior orders. Without knowing the specific relief sought in the father's petition and in the absence of the transcript of the proceeding before Family Court, we cannot conclude that the father relinquished his right to appeal from that portion of the prior order establishing his child support obligation (see Matter of Blagg v. Downey, 132 A.D.3d 1078, 1079, 18 N.Y.S.3d 219 [2015]; Hughes v. Gallup–Hughes, 90 A.D.3d 1087, 1088, 935 N.Y.S.2d 149 [2011]; Matter of Siler v. Wright, 64 A.D.3d 926, 927–928, 882 N.Y.S.2d 574 [2009]; Matter of Chittick v. Farver, 279 A.D.2d 673, 675, 719 N.Y.S.2d 305 [2001] ). We therefore address the merits of that argument.
“Trial courts possess considerable discretion to impute income in fashioning a child support award and they are not constrained by the financial accounts given by the parties or their experts” (Moffre v. Moffre, 29 A.D.3d 1149, 1150, 815 N.Y.S.2d 315 [2006] [citations omitted]; see Matter of D'Andrea v. Prevost, 128 A.D.3d 1166, 1167, 8 N.Y.S.3d 718 [2015]; Sadaghiani v. Ghayoori, 83 A.D.3d 1309, 1311–1312, 923 N.Y.S.2d 236 [2011] ). Income may be imputed based upon “underreported business activity or payment of personal expenses from business accounts” (Matter of Rubley v. Longworth, 35 A.D.3d 1129, 1130, 825 N.Y.S.2d 839 [2006], lv. denied 8 N.Y.3d 811, 834 N.Y.S.2d 720, 866 N.E.2d 1049 [2007]; see Harrington v. Harrington, 93 A.D.3d 1092, 1093, 941 N.Y.S.2d 320 [2012]; Askew v. Askew, 268 A.D.2d 635, 636, 700 N.Y.S.2d 594 [2000] ), as well as from other resources that may be available to the parent, including lodging, automobiles or other perquisites that are provided as part of employment compensation “to the extent that such perquisites constitute expenditures for personal use, or which expenditures directly or indirectly confer personal economic benefits” (Family Ct. Act § 413[1][b][5][iv][B]; see Matter of Perel v. Gonzalez, 105 A.D.3d 552, 553–554, 964 N.Y.S.2d 28 [2013], lv. denied 21 N.Y.3d 865, 973 N.Y.S.2d 582, 996 N.E.2d 501 [2013] ).
Here, the father is the sole owner of a small corporation and resides in a portion of the business property at no personal cost. He does not pay rent for such personal living space and all of the occupancy costs, as well as his personal expenses—including utilities, cable, Internet, cell phone, groceries and vehicle insurance—are paid out of his corporate account. Under such circumstances, Family Court acted well within its discretion in imputing $1,000 per month to the father for the benefit derived from the company-provided living expenses (see Matter of Covington v. Boyle, 127 A.D.3d 1393, 1394–1395, 6 N.Y.S.3d 785 [2015]; Matter of Perel v. Gonzalez, 105 A.D.3d at 553–554, 964 N.Y.S.2d 28).
The record also supports Family Court's decision to impute income to the father based upon increased depreciation. By statute, certain self-employment tax deductions, including “any depreciation deduction greater than depreciation calculated on a straight-line basis for the purpose of determining business income,” may be attributed to a parent's income (Family Ct. Act § 413[1][b][5][vi][A] ). The mother's accountant, who reviewed the relevant records and tax returns of the father's corporation, testified that accelerated depreciation was utilized for the corporation's equipment, calculated what the straight line depreciation would have been and concluded that the father had claimed $4,761 in excess of straight line depreciation for the 2011 tax year at issue (compare Matter of Grosso v. Grosso, 90 A.D.3d 1672, 1674, 936 N.Y.S.2d 452 [2011] ). While the father's accountant disputed this figure, this created a credibility issue for the Support Magistrate to resolve and the record amply supports its decision to accept the opinion of the mother's accountant (see generally Esposito–Shea v. Shea, 94 A.D.3d 1215, 1216–1217, 941 N.Y.S.2d 793 [2012]; Gaglio v. Molnar–Gaglio, 300 A.D.2d 934, 937, 753 N.Y.S.2d 185 [2002]; Charland v. Charland, 267 A.D.2d 698, 701, 700 N.Y.S.2d 254 [1999] ).
ORDERED that the appeal from that part of the order establishing respondent's monthly contribution towards the cost of the children's health insurance is dismissed, as moot, without costs.
ORDERED that the remainder of the order is affirmed, without costs.
GARRY, ROSE and LYNCH, JJ., concur.