Lorys v. Powell

• Decision Date: 30 April 2014
• Citation: 116 A.D.3d 1047,983 N.Y.S.2d 892,2014 N.Y. Slip Op. 02938
• Parties: In the Matter of Cynthia Marie LORYS, respondent, v. Shawn POWELL, appellant.
• Court: New York Supreme Court — Appellate Division

116 A.D.3d 1047

983 N.Y.S.2d 892

2014 N.Y. Slip Op. 02938

In the Matter of Cynthia Marie LORYS, respondent,

v.Shawn POWELL, appellant.

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

April 30, 2014.

Gloria Marchetti–Bruck, Mount Kisco, N.Y., for appellant.

Christopher S. Weddle, White Plains, N.Y., for respondent.

In a proceeding pursuant to Family Court Act article 4, the father appeals from an order of the Family Court, Westchester County (Morales–Horowitz, J.), entered July 24, 2012, which denied his objections to an order of the same court (Jordan, S.M.), entered March 21, 2012, which, after a hearing, granted the mother's petition for an upward modification of his child support obligation as set forth in an order of child support entered May 14, 2010.

ORDERED that the order entered July 24, 2012, is affirmed, without costs or disbursements.

“The granting of an adjournment for any purpose is a matter resting within the sound discretion of the trial court” (Matter of Anthony M., 63 N.Y.2d 270, 283, 481 N.Y.S.2d 675, 471 N.E.2d 447;see Matter of Steven B., 6 N.Y.3d 888, 889, 817 N.Y.S.2d 599, 850 N.E.2d 646;Matter of Sicurella v. Embro, 31 A.D.3d 651, 819 N.Y.S.2d 75). “In making such a determination, the court must undertake a balanced consideration of all relevant factors” (Matter of Sicurella v. Embro, 31 A.D.3d at 651, 819 N.Y.S.2d 75). Here, in light of the fact that the father left the courthouse before the hearing began despite advanced notice that a hearing would occur, and his counsel's failure to articulate a legitimate reason for an adjournment, the Support Magistrate providently exercised her discretion in denying the application for an adjournment made by the father's counsel at the conclusion of the mother's case ( see Matter of Paulino v. Camacho, 36 A.D.3d 821, 828 N.Y.S.2d 496;Matter of Sicurella v. Embro, 31 A.D.3d 651, 819 N.Y.S.2d 75).

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 deference to a support magistrate's credibility determinations ( see Matter of Feng Lucy Luo v. Yang, 89 A.D.3d 946, 933 N.Y.S.2d 80;Matter of Tsarova v. Tsarov, 59 A.D.3d 632, 875 N.Y.S.2d 84). Here, the Support Magistrate's decision to impute $100,000 in income to the father, which was based primarily on a credibility determination, 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. Ventimiglia, 73 A.D.3d 1066, 899 N.Y.S.2d 899).

As to the father's claim of ineffective assistance of counsel, in the context of civil litigation, such a claim will not be entertained where, as here, extraordinary circumstances are absent ( see Matter of Ferrara v. Ferrara, 52 A.D.3d 599, 600, 860 N.Y.S.2d...