Prill v. Mandell

• Decision Date: 17 March 1997
• Citation: 655 N.Y.S.2d 78,237 A.D.2d 445
• Parties: In the Matter of Karen PRILL, Respondent-Appellant, v. Steven MANDELL, Appellant-Respondent.
• Court: New York Supreme Court — Appellate Division

Page 78

655 N.Y.S.2d 78

237 A.D.2d 445

In the Matter of Karen PRILL, Respondent-Appellant, v. Steven MANDELL, Appellant-Respondent.

Supreme Court, Appellate Division Second Department.

March 17, 1997.

Newman & Cahn, LLP, Carle Place, (Neil R. Cahn, of counsel), for appellant-respondent.

Goodman, Goodman & Jurist, Garden City, (Howard Jurist, of counsel), for respondent-appellant.

Before ROSENBLATT, J.P., and MILLER, RITTER and COPERTINO, JJ.

MEMORANDUM BY THE COURT.

In a support proceeding pursuant to Family Court Act article 4, (1) the father appeals (a) as limited by his brief, from so much of an order of the Family Court, Rockland County (Warren, J.), dated October 19, 1995, as denied, in part, his objections to an order of the same court (Miklitsch, H.E.), dated August 24, 1994, granting, after a hearing, his petition for a downward modification only to the extent of reducing his child support obligation to $1,921.27 per month, and (b) as limited by his brief, from so much of an order of the same court, dated October 18, 1995, as denied his cross motion to direct the mother to execute a waiver pursuant to 26 U.S.C. § 152 allowing him to claim the parties' child as an income tax deduction in alternate tax years, and (2) the mother cross-appeals (a) as limited by her brief, from so much of the order dated October 19, 1995, as failed to dismiss the father's petition for downward modification of support, and (b) as limited by her brief, from so much of the order dated October 18, 1995, as denied her motion for an award of attorney's fees.

ORDERED that the cross appeal from the order dated October 19, 1995, is dismissed; and it is further;

ORDERED that on the appeal by the father the order dated October 19, 1995, is modified, by sustaining the father's objection to the calculation of support based on imputed income; as so modified, the order dated October 19, 1995, is affirmed insofar as appealed from, without costs or disbursements; and it is further,

ORDERED that the order dated October 18, 1995, is affirmed insofar as reviewed, without costs or disbursements.

The mother's cross appeal from the order dated October 19, 1995, must be dismissed as no appeal lies from an order of a hearing examiner where, as here, the cross-appellant has not submitted objections to the order to a Family Court Judge (see, Family Ct Act § 439[e]; Matter of Ballard v. Davis, 229 A.D.2d 705, 645 N.Y.S.2d 148; Matter of Mireille J. v. Ernst F.J., 220 A.D.2d 503, 632 N.Y.S.2d 162; Matter of Zunino v. Mahoney, 204 A.D.2d 469, 614 N.Y.S.2d 161; Matter of Werner v. Werner, 130 A.D.2d 754, 516 N.Y.S.2d 49).

It is appropriate to impute income where the father has voluntarily left his employment (see, Hickland v. Hickland, 39 N.Y.2d 1, 382 N.Y.S.2d 475, 346 N.E.2d 243; Matter of Mireille J. v Ernst F.J., supra; Alfano v. Alfano, 151 A.D.2d 530, 542 N.Y.S.2d 313; Matter of Miller v. Miller, 137 A.D.2d 536, 524 N.Y.S.2d 276; Moore v. Moore, 115...