In the Matter of Niagara County Dep't of Soc. Serv. v. Hueber

• Decision Date: 10 November 2011
• Citation: 89 A.D.3d 1440,932 N.Y.S.2d 631,2011 N.Y. Slip Op. 08007
• Parties: In the Matter of NIAGARA COUNTY DEPARTMENT OF SOCIAL SERVICES, on behalf of Theresa A. KEARNS, Petitioner–Respondent,v.Roger L. HUEBER, Respondent–Appellant. (Appeal No. 2.)
• Court: New York Supreme Court — Appellate Division

89 A.D.3d 1440
932 N.Y.S.2d 631
2011 N.Y. Slip Op. 08007

In the Matter of NIAGARA COUNTY DEPARTMENT OF SOCIAL SERVICES, on behalf of Theresa A. KEARNS, Petitioner–Respondent,
v.
Roger L. HUEBER, Respondent–Appellant. (Appeal No. 2.)

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

Nov. 10, 2011.

[932 N.Y.S.2d 631]

Roger L. Hueber, Respondent–Appellant Pro Se.PRESENT: FAHEY, J.P., CARNI, SCONIERS, GORSKI, AND MARTOCHE, JJ.MEMORANDUM:

[89 A.D.3d 1441] In this proceeding pursuant to Family Court Act article 4, respondent father appeals

[932 N.Y.S.2d 632]

from an order denying his objections to the order of the Support Magistrate that, inter alia, imputed income to him based on the minimum wage for a period of approximately one year and two weeks and ordered that he pay child support arrears for that period in the amount of $659.18. It is undisputed that the father was incarcerated during the relevant time period.

Contrary to the father's contention, the Support Magistrate did not abuse her discretion by imputing income to the father for the time period in question for the purpose of calculating his child support obligation, despite the fact that he was incarcerated during that period. To the extent that the father's financial hardship is the result of his own wrongful conduct, he is not entitled to a reduction of his child support obligation ( see Matter of Grettler v. Grettler, 12 A.D.3d 602, 786 N.Y.S.2d 540; Matter of Winn v. Baker, 2 A.D.3d 1169, 768 N.Y.S.2d 708; see generally Matter of Knights v. Knights, 71 N.Y.2d 865, 866–867, 527 N.Y.S.2d 748, 522 N.E.2d 1045). We reject the father's further contention that 50% of the child support obligation should be apportioned to the child's noncustodial mother. There is no evidence in the record that the mother had any income or was capable of earning income. Thus, the mother's pro rata share of the child support obligation is zero ( see generally Family Ct. Act § 413[1][c][2] ).

The father's contention that the Support Magistrate should have calculated his support obligation using the statutory percentage for two children rather than the statutory percentage for one child is not preserved for our review inasmuch as it is raised for the first time on appeal ( see generally Matter of Erie County Dept. of Social Servs. v. Shaw, 81 A.D.3d 1328, 916 N.Y.S.2d 396; Matter of White v. Knapp, 66 A.D.3d 1358, 886 N.Y.S.2d 527). In any event, that contention is without merit because the father is...