Grace v. Amabile

• Decision Date: 04 March 2020
• Docket Number: Docket Nos. F-2405-06/17F, F-2405-06/17G,2018-11839
• Citation: 181 A.D.3d 602,117 N.Y.S.3d 616 (Mem)
• Parties: In the Matter of Michelle C. GRACE, Respondent, v. John AMABILE, Jr., Appellant.
• Court: New York Supreme Court — Appellate Division

181 A.D.3d 602

117 N.Y.S.3d 616 (Mem)

In the Matter of Michelle C. GRACE, Respondent,

v.John AMABILE, Jr., Appellant.

2018-11839

Docket Nos. F-2405-06/17F, F-2405-06/17G

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

Submitted - January 31, 2020

March 4, 2020

Abbe C. Shapiro, Mount Sinai, NY, for appellant.

Somer & Heller, LLP, Commack, N.Y. (Jeffrey T. Heller of counsel), for respondent.

WILLIAM F. MASTRO, J.P., JEFFREY A. COHEN, LINDA CHRISTOPHER, 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, Suffolk County (David Morris, J.), dated August 28, 2018. The order denied the father's objections to an order of the same court (John E. Raimondi, S.M.) dated June 25, 2018, which, after a hearing, granted the mother's violation petition and petition for an upward modification of the father's child support obligation, directed the entry of a money judgment in favor of the mother and against the father in the principal sum of $3,167.73, granted the mother's application for an award of counsel fees, and directed the entry of a money judgment in favor of the mother's attorney and against the father in the principal sum of $13,200.

ORDERED that the order dated August 28, 2018, is affirmed, without costs or disbursements.

The parties have one child together. In an order dated August 11, 2014, the Family Court directed the father to pay $425 per month in child support and 50 percent of the cost of, inter alia, the child's summer camp and school equipment and supplies. In 2017, the mother filed a violation petition and a petition for an upward modification of the father's child support obligation. After a hearing, the Support Magistrate granted the mother's petitions, found that the father was in willful violation of the prior order of support for failing to reimburse the mother for his share of the cost of summer camp and certain school equipment and supplies, directed the entry of a money judgment in favor of the mother and against the father in the principal sum of $3,167.73, granted the mother's application for an award of counsel fees, and directed the entry of a money judgment in favor of the mother's attorney and against the father in the principal sum of $13,200. The father filed objections to the Support Magistrate's order, and the Family Court denied the father's objections. The father appeals.

We agree with the Family Court's denial of the father's objections to so much of the Support Magistrate's order as granted the mother's petition for an upward modification of his child support obligation (see Matter of Bustamante v. Donawa, 119 A.D.3d 559, 987 N.Y.S.2d 889 ). "The level of child support is determined by the parents' ability to provide for their children rather than their current economic situation" ( id. at 559–560, 987 N.Y.S.2d 889 [internal quotation marks omitted). "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 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 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" ( Matter of Julianska v. Majewski, 78 A.D.3d 1182, 1183, 911 N.Y.S.2d 655 ), 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 (see id. at 1183, 911 N.Y.S.2d 655 ; Matter of Musarra v. Musarra, 28 A.D.3d 668, 814 N.Y.S.2d 657 ). Here, the Support Magistrate's decision to impute $60,000 in income to the father and only $30,000 in income to the mother, which was based primarily on credibility determinations, is supported by the record, and should not be disturbed (see Matter of Gebaide v. McGoldrick, 74 A.D.3d 966, 901 N.Y.S.2d 857 ; Matter of Kennedy v....