Feng Lucy Luo v. Yang

• Decision Date: 15 November 2011
• Citation: 2011 N.Y. Slip Op. 08362,933 N.Y.S.2d 80,89 A.D.3d 946
• Parties: In the Matter of FENG LUCY LUO, respondent-appellant, v. Tom T. YANG, appellant-respondent.
• Court: New York Supreme Court — Appellate Division

2011 N.Y. Slip Op. 08362

89 A.D.3d 946

933 N.Y.S.2d 80

In the Matter of FENG LUCY LUO, respondent-appellant,

v.Tom T. YANG, appellant-respondent.

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

Nov. 15, 2011.

Vasti & Vasti, P.C., Pleasant Valley, N.Y. (Thomas F. Vasti III of counsel), for appellant-respondent.

Gary E. Lane, Poughkeepsie, N.Y., for respondent-appellant.

DANIEL D. ANGIOLILLO, J.P., ANITA R. FLORIO, JOHN M. LEVENTHAL, and JEFFREY A. COHEN, JJ.

In a child support proceeding pursuant to Family Court Act article 4, the father appeals, as limited by his brief, from so much of an order of the Family Court, Dutchess County (Posner, J.), dated February 3, 2011, as denied his objections to an order of the same court (Greenblatt, S.M.) dated September 17, 2010, which, after a hearing, granted the mother's petition for an upward modification of his child support obligation, and the mother cross-appeals, as limited by her brief, from so much of the order dated February 3, 2011, as denied her objections to the order dated September 17, 2010, allocating to her only one-half of the sum determined to be reasonable to meet the needs of the children.

ORDERED that the order dated February 3, 2011, is affirmed insofar as appealed and cross-appealed from, without costs or disbursements.

The father failed to file a sworn financial disclosure affidavit ( see Family Ct. Act § 424–a) and failed to comply with discovery demands. Under these circumstances, the Support Magistrate did not err in precluding the father from offering evidence as to his financial ability to pay child support ( see Family Ct. Act § 424–a[b]; Lotardo v. Lotardo, 31 A.D.3d 504, 505, 818 N.Y.S.2d 568). Moreover, since there was insufficient evidence to determine the father's gross income, the Family Court properly denied his objections to the Support Magistrate's determination based upon the needs of the children ( see Family Ct. Act § 413[1][k]; Matter of Tsarova v. Tsarov, 59 A.D.3d 632, 875 N.Y.S.2d 84; Matter of Saladin v. Vicari, 23 A.D.3d 215, 805 N.Y.S.2d 6; Matter of Denham v. Kaplan, 16 A.D.3d 685, 793 N.Y.S.2d 58; Matter of Kondratyeva v. Yapi, 13 A.D.3d 376, 788 N.Y.S.2d 394; Matter of Grossman v. Grossman, 248 A.D.2d 536, 670 N.Y.S.2d 206). Furthermore, the Support Magistrate had sufficient evidence to determine the needs of the children ( see Baruch v. Blum, 301 A.D.2d 479, 753 N.Y.S.2d 371). Great deference should be given to the credibility determination of the Support Magistrate, who is in the best position to assess the credibility of the witnesses ( see Matter of Tsarova v. Tsarov, 59 A.D.3d 632, 875 N.Y.S.2d 84; Matter of Fragola v. Alfaro, 45 A.D.3d 684, 685, 845 N.Y.S.2d 437; Matter of Musarra v. Musarra, 28 A.D.3d 668, 669, 814 N.Y.S.2d 657). The record supports the Support Magistrate's assessment of the mother's credibility on the issue of the needs of the children.

The father's claim of prejudice or bias on the part of the Support Magistrate is improperly based in large part upon matter dehors the record ( see Matter of Neuhauser v. Eisenberger, 77 A.D.3d 951, 910 N.Y.S.2d 119). Contrary to the father's contention, there is no evidence in the record that the Support Magistrate was prejudiced or biased against him and deprived him of a fair hearing ( see Matter of Zeman v. Knibbs, 86 A.D.3d 578, 926 N.Y.S.2d 902; Matter of Richardson v. Richardson, 80 A.D.3d 32, 44–45, 910 N.Y.S.2d 149; Matter of Jeannie B. v. Roger D., 33 A.D.3d 994, 824 N.Y.S.2d 332; Matter of Grossman v. Grossman, 238 A.D.2d 339, 656 N.Y.S.2d 935).

To the extent that the father raises an issue on appeal regarding his written application for an apportionment of the...