Kennedy v. Ventimiglia

• Decision Date: 18 May 2010
• Citation: 899 N.Y.S.2d 899,73 A.D.3d 1066
• Parties: In the Matter of Maryanne KENNEDY, appellant, v. John VENTIMIGLIA, respondent.
• Court: New York Supreme Court — Appellate Division

899 N.Y.S.2d 899

73 A.D.3d 1066

In the Matter of Maryanne KENNEDY, appellant,

v.John VENTIMIGLIA, respondent.

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

May 18, 2010.

Maryanne Kennedy, Garden City, N.Y., appellant pro se.

In a child support proceeding pursuant to Family Court Act article 4, the mother appeals, as limited by her brief, from so much of an order of the Family Court, Nassau County (Greenberg, J.), dated July 21, 2009, as denied her objection to so much of an order of the same court (Cahn, S.M.), dated March 6, 2009, as, after a hearing, denied her petition, in effect, to modify a prior order of child support dated September 27, 2007, and granted the father's cross petition for a downward modification of his child support obligation.

ORDERED that the order dated July 21, 2009, is affirmed insofar as appealed from, without costs or disbursements.

Contrary to the mother's contention, the Support Magistrate did not improvidently exercise her discretion in declining toimpute additional income to the father. A Support Magistrate is afforded considerable discretion in determining whether to impute income to a parent ( see Matter of Genender v. Genender, 51 A.D.3d 669, 670, 858 N.Y.S.2d 673; Matter of Bibicoff v. Orfanakis, 48 A.D.3d 680, 681, 852 N.Y.S.2d 324; Matter of Thompson v. Perez, 42 A.D.3d 503, 504, 838 N.Y.S.2d 789; Matter of Hurd v. Hurd, 303 A.D.2d 928, 928, 757 N.Y.S.2d 170). " 'Great deference should be given to the determination of the Support Magistrate, who is in the best position to assess the credibility of the witnesses' " ( Matter of Strella v. Ferro, 42 A.D.3d 544, 545, 841 N.Y.S.2d 118, quoting Matter of Musarra v. Musarra, 28 A.D.3d 668, 669, 814 N.Y.S.2d 657; see Matter of Cordero v. Olivera, 40 A.D.3d 852, 852-853, 837 N.Y.S.2d 172; Matter of Mahoney v. Goggins, 24 A.D.3d 668, 669, 807 N.Y.S.2d 125). Here, the Support Magistrate properly declined to impute additional income to the father ( see Matter of Saren v. Palma, 3 A.D.3d 572, 572, 770 N.Y.S.2d 652). The findings regarding the father's income were based on credibility determinations and are supported by the record. Accordingly, they should not be disturbed ( id.).

The mother's remaining contentions are either not properly before this Court or without merit.

COVELLO, J.P., DICKERSON, ENG and AUSTIN, JJ., concur.