Andre v. Warren
| Decision Date | 29 April 1993 |
| Citation | 192 A.D.2d 491,597 N.Y.S.2d 37 |
| Parties | In re Linda ANDRE, Petitioner-Appellant, v. Robert WARREN, Respondent-Respondent. |
| Court | New York Supreme Court — Appellate Division |
Before SULLIVAN, J.P., and CARRO, MILONAS, KUPFERMAN and ROSS, JJ.
Order, Family Court, New York County (Judith Sheindlin, J.), entered on or about August 12, 1991, which denied petitioner's objections to the Hearing Examiner's order fixing respondent's child support obligation, unanimously affirmed, without costs.
Petitioner failed to rebut the presumption that the standard of support calculated pursuant to Family Court Act § 413(1)(c) was reasonable and appropriate (see, Matter of Steuben County Dept. of Social Servs. v. James, 171 A.D.2d 1023, 569 N.Y.S.2d 32). In a trial that hinged almost entirely upon credibility, due to petitioner's failure to provide documentation of her income from a cash-based profession, the Hearing Examiner was in the best position to evaluate the evidence and assess credibility (see, Matter of Masten v. Masten, 150 A.D.2d 693, 541 N.Y.S.2d 566, lv. denied 74 N.Y.2d 611, 546 N.Y.S.2d 555, 545 N.E.2d 869; Matter of Miller v. Davis, 176 A.D.2d 945, 575 N.Y.S.2d 681), and her findings, including that imputing income to petitioner in an amount exceeding that reported in the only Federal tax return she ever filed (see, Family Ct.Act § 413[1][b][5][i], in the midst of the instant proceeding, are entitled to great deference (see, Creem v. Creem, 121 A.D.2d 676, 677, 504 N.Y.S.2d 444). There was no proof that respondent reduced his resources or income in order to reduce or avoid his child support obligation (see, Family Ct.Act § 413[1][b][5][v]; Matter of Monroe County Dept. of Social Servs. v. Bennett, 178 A.D.2d 974, 578 N.Y.S.2d 733), and while it is not clear whether the court considered respondent's earning capacity, rather than his actual earnings (see, Sayer v. Sayer, 130 A.D.2d 407, 410, 515 N.Y.S.2d 444), no proof of such capacity was, in any event, adduced. The denial of child care expenses was reasonably based upon a determination that they were either incurred primarily to allow petitioner to do unpaid volunteer work, which does not qualify as a reimbursable support expense (see, Family Ct.Act § 413[1][c][4], or paid for by petitioner's husband (see, Matter of Boden v. Leccese, 83 A.D.2d 636, 441 N.Y.S.2d 539).
Finally, there is no support in the record for petitioner's assertion that the Hearing...
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...that which he reported on his tax returns, the court properly disregarded the appellant's claimed income (see, Matter of Andre v. Warren, 192 A.D.2d 491, 597 N.Y.S.2d 37), and appropriately calculated the appellant's support obligation with reference to an imputed income amount reflecting t......
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...incurred, we defer to Family Court's determinations, grounded in its assessment of the mother's credibility ( Matter of Andre v. Warren, 192 A.D.2d 491, 597 N.Y.S.2d 37 [1st Dept. 1993] ). He claims it was unfair for the court to admit into evidence, over his counsel's objection, the "volum......
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