Opinion
May 5, 1997
Appeal from the Supreme Court, Westchester County (Donovan, J.).
Ordered that the appeal from the order entered February 15, 1996, is dismissed, without costs or disbursements, as no appeal lies from an order which decides a motion to set aside a decision ( see, McComish v. McComish, 227 A.D.2d 454); and it is further,
Ordered that the order entered December 5, 1995, is affirmed, without costs or disbursements; and it is further,
Ordered that the judgment entered January 18, 1996, is modified, on the law, by deleting the 10th, 11th, 16th, 18th, 22nd, and 26th decretal paragraphs thereof; as so modified, the judgment is affirmed insofar as appealed from, without costs or disbursements, and the matter is remitted to the Supreme Court, Westchester County, for a hearing in accordance herewith.
The trial court properly determined that, in light of the totality of the circumstances, the best interests of the parties' child were served by awarding custody to the defendant ( see, Eschbach v. Eschbach, 56 N.Y.2d 167, 171; Fanelli v. Fanelli, 215 A.D.2d 718, 719). This determination, like any custody determination, turned in large part upon the trial court's assessment of the credibility, character, temperament, and sincerity of the trial witnesses and the parties ( see, Fanelli v. Fanelli, supra). Where the trial court has conducted a full evidentiary hearing on the issue of the child's best interests, the resultant findings are to be accorded great weight and are not to be set aside lightly on appeal ( see, Ira K v. Frances K, 115 A.D.2d 699). Moreover, the trial court did not improvidently exercise its discretion in limiting the plaintiff's rebuttal case where the proposed testimony was redundant and could have been presented during her direct case ( see, Matter of Scheriff v. Scheriff; 221 A.D.2d 450, 451).
The court did err, however, in calculating the plaintiff's child support obligation based on an imputed income of $30,000 per year. While it is well settled that a court may determine a child support obligation on the basis of a party's earning potential, rather than the party's current economic situation ( see, Hickland v. Hickland, 39 N.Y.2d 1, cert denied 429 U.S. 941; Kay v. Kay, 37 N.Y.2d 632, 637; Carr v. Carr, 171 A.D.2d 776, 777; Gunn v. Gunn, 143 A.D.2d 393, 395), the calculation of the party's earning potential must have some basis in law and fact ( see, Martusewicz v. Martusewicz, 217 A.D.2d 926, 927). Here, there was no evidence in the record to support a conclusion that the plaintiff could earn an annual salary of $30,000. We therefore remit this matter to the Supreme Court for a recalculation of the plaintiff's child support obligation.
It was also error for the court to award the defendant retroactive credits as a result of a downward modification of his pendente lite maintenance and child support obligations. While a party in a matrimonial action may request the downward modification of a temporary maintenance or child support award when that party can demonstrate financial hardship ( see, Domestic Relations Law § 236[B][6], [9][b]), such a downward modification may operate only prospectively ( see, Stone v. Stone, 152 A.D.2d 560). The defendant was therefore not entitled to the overpayment credits given to him by the trial court.
It was also error for the trial court to award the defendant $30,000 in counsel fees without first conducting a full evidentiary hearing on the issue. Even though the relative financial positions of the parties were thoroughly examined at trial, there is no indication of how the court arrived at the figure of $30,000 or whether that figure had any relationship to the defendant's legitimate legal bills. A hearing is therefore necessary as a "`meaningful way of testing the [attorney's] claims relative to time and value'" ( Price v. Price, 113 A.D.2d 299, 309, affd 69 N.Y.2d 8; Sadotsky v. Sadotsky, 78 A.D.2d 520, 521).
The court's determination and apportionment of the Law Guardian's fee was not improper ( see, Hughes v. Hughes, 224 A.D.2d 389). There was, however, no basis in the record for awarding the Law Guardian a $5,000 retainer for future work to be performed on behalf of the parties' child. There is no evidence that this retainer was applied for or warranted. The Law Guardian may apply to the court for an additional fee if she expends any further time or effort on the child's behalf.
The court's imposition of monetary sanctions on the plaintiff's counsel was made in accordance with proper procedure and was fully supported by the record ( see, 22 NYCRR 130-1.1 [a]; Flaherty v. Stavropoulos, 199 A.D.2d 301, 302).
We have examined the plaintiff's remaining contentions and find them to be without merit.
Bracken, J.P., Copertino, Santucci and Altman, JJ., concur.