Picone v. Golio

• Decision Date: 13 March 2019
• Docket Number: 2018–08727,Docket No. F–00767–17
• Citation: 170 A.D.3d 859,93 N.Y.S.3d 879 (Mem)
• Parties: In the Matter of Joseph PICONE, Respondent, v. Frank GOLIO, Appellant.
• Court: New York Supreme Court — Appellate Division

170 A.D.3d 859

93 N.Y.S.3d 879 (Mem)

In the Matter of Joseph PICONE, Respondent,

v.Frank GOLIO, Appellant.

2018–08727

Docket No. F–00767–17

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

Submitted—February 5, 2019

March 13, 2019

Meth Law Offices, P.C., Chester, N.Y. (Michael D. Meth of counsel), for appellant.

Bloom & Bloom, P.C., New Windsor, N.Y. (Peter E. Bloom of counsel), for respondent.

MARK C. DILLON, J.P., JOHN M. LEVENTHAL, SYLVIA O. HINDS–RADIX, COLLEEN D. DUFFY, JJ.

DECISION & ORDER

In a proceeding pursuant to Family Court Act article 4, Frank Golio appeals from an order of the Family Court, Orange County (Lori Currier Woods, J.), dated June 4, 2018. The order denied his objections to an order of the same court (Gladys E. Braxton, S.M.) entered December 15, 2017, which, after a hearing, inter alia, upon imputing an additional $ 47,600 to his earned income, directed Frank Golio to pay child support in the sum of $ 1,460 per month.

ORDERED that the order dated June 4, 2018, is affirmed, with costs.

Joseph Picone and Frank Golio were domestic partners. During the course of their relationship, Picone's sister agreed to be impregnated with Golio's sperm and to terminate her parental rights in order for Picone to adopt the child or children. In February 2010, she gave birth to fraternal twins (hereinafter together the children). In early 2014, Picone and Golio separated. Both parties subsequently petitioned for custody or parental access with the children. In 2016, this Court affirmed so much of an order of the Family Court as determined that Picone established standing to seek custody or parental access with the children, and remitted the matter to the Family Court, Orange County, for a full hearing on Picone's petition for custody or parental access (see Matter of Frank G. v. Renee P.-F., 142 A.D.3d 928, 37 N.Y.S.3d 155 ). On remittitur, the Family Court, after a hearing, awarded custody of the children to Picone. In 2018, this Court affirmed the Family Court's custody determination (see Matter of Renee P.-F. v. Frank G., 161 A.D.3d 1163, 79 N.Y.S.3d 45 ).

In February 2017, Picone filed a petition seeking an order of support against Golio for the children. After a hearing, the Support Magistrate determined that Golio's annual income was $ 94,532, which included imputed income of $ 47,600 and, inter alia, directed Golio to pay child support in the sum of $ 1,460 per month. Golio filed objections to that determination, which the Family Court denied. Golio appeals.

A support magistrate need not rely upon a party's own account of his or her finances, but may impute income on the basis of the party's past income or demonstrated potential earnings (see Matter of Feliciano v. Elghouayel, 164 A.D.3d 1238, 1239, 83 N.Y.S.3d 587 ; Matter of Decillis v. Decillis, 152 A.D.3d 512, 513, 58 N.Y.S.3d 126 ; Matter of Rohme v. Burns, 92 A.D.3d 946, 947, 939 N.Y.S.2d 532 ). A support magistrate may impute income based upon the party's employment history, future earning capacity, educational background, or "money, goods, or services provided by relatives and friends" ( Family Ct. Act § 413[1][b][5][iv] ; see Margolis v. Cohen, 153 A.D.3d 1390, 1393, 61 N.Y.S.3d 328 ; Matter of Napoli v. Koller, 140 A.D.3d 1070, 1071, 34 N.Y.S.3d 488 ; Matter of Huddleston v. Rufrano, 98 A.D.3d 1046, 1047, 951 N.Y.S.2d 179 ; Mosso v. Mosso, 84 A.D.3d 757, 758–759, 924 N.Y.S.2d 394...