In the Matter of Tracey L. Kirchain v. Smith

• Decision Date: 24 May 2011
• Citation: 923 N.Y.S.2d 860,84 A.D.3d 1237,2011 N.Y. Slip Op. 04468
• Parties: In the Matter of Tracey L. KIRCHAIN, appellant,v.Kenneth M. SMITH, respondent.
• Court: New York Supreme Court — Appellate Division

84 A.D.3d 1237

923 N.Y.S.2d 860

2011 N.Y. Slip Op. 04468

In the Matter of Tracey L. KIRCHAIN, appellant,

v.Kenneth M. SMITH, respondent.

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

May 24, 2011.

OPINION TEXT STARTS HERETracey L. Kirchain, St. Johns, Florida, appellant pro se.Kenneth M. Smith, White Plains, N.Y., respondent pro se.

In a child support proceeding pursuant to Family Court Act article 4, the mother appeals from an order of the Family Court, Westchester County (Klein, J.), entered April 16, 2010, which denied her objections to an order of the same court (Cabanillas–Thompson, S.M.), dated January 5, 2010, which, after a hearing, fixed the father's arrears for unreimbursed medical expenses in the sum of only $1,129.63.

ORDERED that the order entered April 16, 2010, is affirmed, with costs.

In reviewing a determination of the Family Court, deference should be given to the credibility determinations of the Support Magistrate, who was in the best position to evaluate the credibility of the witnesses ( see Matter of Kahl–Lapine v. Lapine, 35 A.D.3d 611, 612, 824 N.Y.S.2d 742; Matter of Musarra v. Musarra, 28 A.D.3d 668, 669, 814 N.Y.S.2d 657; Matter of Mahoney v. Goggins, 24 A.D.3d 668, 669, 807 N.Y.S.2d 125; Matter of Penninipede v. Penninipede, 6 A.D.3d 445, 447, 775 N.Y.S.2d 329). The record supports the Support Magistrate's finding that the father was responsible for the sum of $1,129.63 in unreimbursed medical expenses for the parties' child ( see Matter of Kahl–Lapine v. Lapine, 35 A.D.3d at 612, 824 N.Y.S.2d 742; Matter of Penninipede v. Penninipede, 6 A.D.3d at 447, 775 N.Y.S.2d 329).

The mother met her initial burden of presenting prima facie evidence of the father's nonpayment of his pro rata share of certain unreimbursed medical expenses ( see Matter of Powers v. Powers, 86 N.Y.2d 63, 69, 629 N.Y.S.2d 984, 653 N.E.2d 1154; Matter of Paccione v. Paccione, 57 A.D.3d 900, 902–903, 870 N.Y.S.2d 430). However, the father offered evidence sufficient to rebut her showing. The father's sworn testimony and documentary evidence established that he had paid the mother for a portion of the medical expenses for which she sought reimbursement. The record does not support the mother's contention that the Support Magistrate made a mathematical error. Accordingly, the Family Court properly denied the mother's objections to the Support Magistrate's order ( see Matter of Mahoney v. Goggins, 24 A.D.3d at 669, 807 N.Y.S.2d 125).