Fendsack v. Fendsack

• Decision Date: 10 January 2002
• Docket Number: 3,89704
• Parties: BARBARA L. FENDSACK, Respondent, v WILLIAM J. FENDSACK, Appellant. 89704 SUPREME COURT OF THE STATE OF NEW YORK APPELLATE DIVISION: THIRD JUDICIAL DEPARTMENT Calendar Date:
• Court: New York Supreme Court — Appellate Division

BARBARA L. FENDSACK, Respondent v WILLIAM J. FENDSACK, Appellant

89704

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE DIVISION: THIRD JUDICIAL DEPARTMENT

Calendar Date: November 9, 2001

Decided and Entered: January 10, 2002

Mark L. Powers, Schenectady, for appellant.

James G. Cushman, Norwich, for respondent.

MEMORANDUM AND ORDER

Before: Cardona, P.J., Mercure, Carpinello, Rose and Lahtinen, JJ.

Rose, J.

Appeal from an order of the Supreme Court (Dowd, J.), entered August 9, 2000 in Chenango County, which, inter alia, partially denied defendant's motion for modification of a prior judgment of divorce.

When plaintiff and defendant were divorced in 1997, the divorce judgment directed defendant to, inter alia, pay plaintiff child support in the amount of $716.13 per month for the parties' one remaining dependent child and permanent maintenance in the amount of $700 a month. In 1999, defendant moved for an order modifying the judgment by reducing maintenance and terminating child support due to a substantial reduction in his employment income and payment of the child's college expenses by an educational trust. After a hearing, Supreme Court found defendant's reduced income to be the result of a voluntary decision to avoid full-time employment and imputed an annual income of $40,000. Supreme Court then adjusted child support accordingly and reduced maintenance by $100 per month due solely to plaintiff's increased income. Defendant appeals and we affirm.

While a parent's child support obligation may be modified when he or she contributes separately to the child's college expenses, this lies within trial court's discretion and the particular facts of the case must warrant such relief (see, Matter of Houck v Houck, 246 A.D.2d 905, 906; Matter of Haessly v Haessly, 203 A.D.2d 700, 702). Here, at the time of their divorce, the parties agreed to equally fund a trust for their child's college education, and their agreement made no provision for an adjustment to child support upon the child's attendance at college. In addition, plaintiff testified that she is responsible for any college expenses not covered by the trust fund, and that she maintains the home and provides for the child's needs when he comes home from college (see, Matter of Haessly v Haessly, supra, at 702).

We also find no abuse of Supreme Court's discretion in imputing an annual income of $40,000 to defendant even though his actual income for the prior year was only $21,575. A parent's child support obligation is determined by his or her ability to provide support rather than his or her current income (see, Matter of Collins v Collins, 241 A.D.2d 725, 727, appeal dismissed, lv denied 91 N.Y.2d 829; Orlando v Orlando, 222 A.D.2d 906, 907, lv dismissed, lv denied 87 N.Y.2d 1052). The record contains evidence, credited by Supreme Court (see, Creighton v Creighton, 222 A.D.2d 740, 742; Matter of Pancaldo v Pancaldo, 214 A.D.2d 879, 880), that defendant voluntarily accepted semiretirement after losing his former employment, refused available full-time employment for $40,000 to $50,000 annually, thereafter worked only part time, and received the benefit of residing with a girlfriend (see, Domestic Relations Law § 240 [1-b] [b] [5] [iv] [D]; Matter of Collins v Collins, supra, at 727).

Further, we find no...