Sorscher v. Auerbach
| Decision Date | 15 June 2022 |
| Docket Number | 2021–09055,Docket No. F–17291–19 |
| Citation | 206 A.D.3d 813,170 N.Y.S.3d 185 |
| Parties | In the Matter of Bracha SORSCHER, appellant, v. Shai AUERBACH, respondent. |
| Court | New York Supreme Court — Appellate Division |
Stuart Salles, New York, NY (Philip L. Kamaras of counsel), for appellant.
Israel Fried, Long Beach, NY, for respondent.
BETSY BARROS, J.P., CHERYL E. CHAMBERS, ROBERT J. MILLER, LINDA CHRISTOPHER, JJ.
DECISION & ORDER
In a proceeding pursuant to Family Court Act article 4, the mother appeals from an order of the Family Court, Kings County (Judith Waksberg, J.), dated November 8, 2021. The order denied the mother's objections to an amended order of the same court (Gabrielle F. Richman, S.M.) dated September 27, 2021, which, inter alia, directed the father to pay child support in the sum of $221 weekly, 48% of the education expenses and unreimbursed health-related expenses for the parties’ children, and retroactive child support in the sum of $24,025.86.
ORDERED that the order dated November 8, 2021, is reversed, on the facts and in the exercise of discretion, without costs or disbursements, the mother's objections to the order dated September 27, 2021, are granted, the order dated September 27, 2021, is vacated, and the matter is remitted to the Family Court, Kings County, for further proceedings consistent herewith.
The mother and the father have five children together. In June 2019, the mother filed a petition seeking child support. In written findings of fact dated July 20, 2021, made after a hearing, the Support Magistrate found that the father had not substantiated his income, and she imputed income to him based on, inter alia, free housing provided to him by his former foster parents and free use of vehicles he received from a friend. In an order dated July 23, 2021, the Support Magistrate, inter alia, in effect, granted the mother's petition and directed the father to pay child support in the sum of $409 weekly, 64% of the education expenses for the parties’ children, 63% of the unreimbursed health-related expenses for the parties’ children, and retroactive child support in the sum of $44,464.14. Thereafter, in an order dated September 15, 2021, the Family Court, inter alia, granted so much of the father's objections as were with respect to the imputation of income to him based upon the free housing he receives from his former foster parents and the value of vehicles that he is provided by a friend, and remitted the matter to the Support Magistrate to reissue her findings of fact and order of support with respect to the income imputed to the father for his housing and vehicle use. On remittitur, the Support Magistrate recalculated the father's support obligation by deleting from her calculations the income she had imputed to the father for his housing and vehicle use. In an amended order dated September 27, 2021, the Support Magistrate, inter alia, directed the father to pay child support in the sum of $221 weekly, 48% of the education expenses and unreimbursed health-related expenses for the parties’ children, and retroactive child support in the sum of $24,025.86. In an order dated November 8, 2021, the Family Court denied the mother's objections to the Support Magistrate's September 27, 2021 amended order, and the mother appeals.
"While a Support Magistrate is afforded considerable discretion in determining whether to impute income to a parent, a determination to impute income will be rejected where the amount imputed was not supported by the record, or the imputation was an improvident exercise of discretion" ( Matter of...
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