Evans v. Evans

• Decision Date: 30 September 2020
• Docket Number: 2019-09088,Docket No. F-11844-18
• Citation: 186 A.D.3d 1684,129 N.Y.S.3d 838 (Mem)
• Parties: In the Matter of Yvonne EVANS, respondent, v. Lance EVANS, appellant.
• Court: New York Supreme Court — Appellate Division

186 A.D.3d 1684

129 N.Y.S.3d 838 (Mem)

In the Matter of Yvonne EVANS, respondent,

v.Lance EVANS, appellant.

2019-09088

Docket No. F-11844-18

Supreme Court, Appellate Division, Second Department, New York.

Submitted—September 8, 2020

September 30, 2020

Barnes, Iaccarino & Shepherd, LLP, Elmsford, NY (Giacchino J. Russo of counsel), for appellant.

ALAN D. SCHEINKMAN, P.J., JOHN M. LEVENTHAL, ROBERT J. MILLER, PAUL WOOTEN, JJ.

DECISION & ORDER

In a proceeding pursuant to Family Court Act article 4, the father appeals from an order of the Family Court, Westchester County (Rachel Hahn, J.), dated June 20, 2019. The order denied the father's objections to so much of an order of the same court (Michele Reed Bowman, S.M.) dated March 20, 2019, as, after a hearing and upon findings of fact dated March 20, 2019, inter alia, in effect, granted the mother's petition for child support and directed him to pay child support in the sum of $579 per week.

ORDERED that the order dated June 20, 2019, is affirmed, without costs or disbursements.

In October 2018, the mother commenced this proceeding against the father, seeking child support for their three children. After a hearing, in an order dated March 20, 2019, the Support Magistrate, inter alia, in effect, granted the mother's petition and directed the father to pay child support in the sum of $579 per week. The father filed objections to the Support Magistrate's order. In an order dated June 20, 2019, the Family Court denied the father's objections. The father appeals.

" ‘The level of child support is determined by the parents' ability to provide for their children rather than their current economic situation’ " ( Matter of Grace v. Amabile, 181 A.D.3d 602, 603, 117 N.Y.S.3d 616, quoting Matter of Bustamante v. Donawa, 119 A.D.3d 559, 559–560, 987 N.Y.S.2d 889 ). " ‘A court need not rely upon a party's own account of his or her finances, but may impute income based upon the party's past income or demonstrated future potential earnings’ " ( Matter of Grace v. Amabile, 181 A.D.3d at 603, 117 N.Y.S.3d 616, quoting Matter of Rohme v. Burns, 92 A.D.3d 946, 947, 939 N.Y.S.2d 532 ). " ‘The court may impute income to a party based on their employment history, future earning capacity, educational background, or money received from friends and relatives’ " ( Matter of Grace v. Amabile, 181 A.D.3d at 603, 604, 117 N.Y.S.3d 616, quoting Matter of LoCasto v. Chiofolo, 89 A.D.3d 847, 848, 932 N.Y.S.2d 365 ). "A support magistrate ‘is afforded considerable discretion in determining whether to impute income to a parent,’ and we accord great deference to credibility determinations of the support magistrate, who is in the best position to assess the credibility of the witnesses and the evidence proffered" ( Matter of Grace v. Amabile, 181 A.D.3d at 604, 117 N.Y.S.3d 616, quoting Matter of Julianska v. Majewski, 78 A.D.3d 1182, 1183, 911 N.Y.S.2d 655 ). "[I]f the statutory formula ‘yields a result that is unjust or inappropriate,’ the court ‘can resort to the [ Family Court Act § 413(1)(f) ] factors and order payment of an amount that is just and appropriate’ " ( Alliger–Bograd v. Bograd, 180 A.D.3d 975, 979, 118 N.Y.S.3d 720, quoting Bast v. Rossoff, 91 N.Y.2d 723, 729, 675 N.Y.S.2d 19, 697 N.E.2d 1009 ; see Brady v. Bounsing–Brady, 131 A.D.3d 1189, 1190–1191, 17 N.Y.S.3d 720 ).

We agree with the Family Court's denial of the father's objections to the Support Magistrate's order. The Support Magistrate's determination to impute to the father his 2017 adjusted gross income, rather than rely on his 2018 adjusted gross income as reported, and the monthly contributions made to the father by his friend was based on credibility determinations and supported by the record, and thus should not be disturbed (see Matter of Grace v. Amabile, 181 A.D.3d at 603, 117 N.Y.S.3d 616 ; Klein v. Klein, 178 A.D.3d 802, 803–804, 116 N.Y.S.3d 92 ; ...