Rohme v. Burns

• Decision Date: 28 February 2012
• Citation: 2012 N.Y. Slip Op. 01609,939 N.Y.S.2d 532,92 A.D.3d 946
• Parties: In the Matter of Alison J. ROHME, respondent, v. James M. BURNS, appellant.
• Court: New York Supreme Court — Appellate Division

2012 N.Y. Slip Op. 01609

92 A.D.3d 946

939 N.Y.S.2d 532

In the Matter of Alison J. ROHME, respondent,

v.James M. BURNS, appellant.

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

Feb. 28, 2012.

Bryan L. Salamone & Associates, P.C., Melville, N.Y. (Jeffrey D. Herbst of counsel), for appellant.

Robert J. Del Col, Smithtown, N.Y., for respondent.

REINALDO E. RIVERA, J.P., DANIEL D. ANGIOLILLO, JOHN M. LEVENTHAL, and JEFFREY A. COHEN, JJ.

In a child support proceeding pursuant to Family Court Act article 4, the father appeals from an order of the Family Court, Suffolk County (Hoffmann, J.), dated April 12, 2011, which, upon supplemental findings of fact dated March 15, 2011 (Raimondi, S.M.), made after remittitur from this Court ( see Matter of Rohme v. Burns, 79 A.D.3d 756, 757, 912 N.Y.S.2d 652), denied his objections to an order of the same court (Raimondi, S.M.), dated January 13, 2010, imputing to him an income of $100,000 per year and finding him responsible for 60% of the subject child's support, unreimbursed medical expenses, and private school tuition.

ORDERED that the order dated April 12, 2011, is affirmed, without costs or disbursements.

The parties have one child together. On August 11, 2009, the mother filed a petition seeking, inter alia, child support. At a hearing, the mother testified that she is an attorney who earned $56,895 in 2008, primarily from real estate closings. The father testified that he had a degree in electrical engineering from Princeton University, and an MBA from New York University Business School. The father owns an investment company which “held the rights to a regression analysis software for Japanese derivatives securities.” The father testified that he made only $26,000 in 2009 as a real estate broker.

In an order dated March 9, 2010, the Family Court denied the father's objections to an order dated January 13, 2010, issued by a support magistrate, which imputed to the father income of $100,000 per year and found him responsible for 60% of the subject child's support, unreimbursed medical expenses, and private school tuition. The father appealed to this Court. In a decision and order dated December 7, 2010, this Court reversed the order dated March 9, 2010, and remitted the matter to the Family Court, Suffolk County, “for a new determination of the father's objections following a report from the Support Magistrate on the issues of the specific sources of income imputed to the father, the actual dollar amounts assigned to each category, and the resultant calculations pursuant to Family Court Act § 413(1)(c)” ( Matter of Rohme v. Burns, 79 A.D.3d 756, 756–757, 912 N.Y.S.2d 652).

Upon remittitur, the Support Magistrate set forth supplemental findings of fact in a report which, inter alia, imputed $100,000 of income to the father based upon certain expenses and found him responsible for 60% of the subject child's support, unreimbursed medical expenses, and private school tuition. In an order dated April, 12, 2011, upon the supplemental findings of fact, the Family Court denied the father's objections to the order dated January 13, 2010. The father appeals, and we affirm.

A court need not rely upon a party's own account of his or her finances, but may impute income based upon the party's past income or demonstrated future potential earnings ( see Brown v. Brown, 239 A.D.2d 535, 657 N.Y.S.2d 764). The court may impute income to a party based on his or her employment history, future earning capacity, educational background, or money received from friends and relatives ( see Matter of LoCasto v. Chiofolo, 89 A.D.3d 847, 848, 932 N.Y.S.2d 365; Matter...