Susan M. v. Louis N.

• Decision Date: 14 July 1994
• Parties: In the Matter of SUSAN "M", 1 Appellant-Respondent, v. LOUIS "N", 1 Respondent-Appellant.
• Court: New York Supreme Court — Appellate Division

Page 584

614 N.Y.S.2d 584

206 A.D.2d 612

In the Matter of SUSAN "M", ¹ Appellant-Respondent, v. LOUIS "N", ¹ Respondent-Appellant.

Supreme Court, Appellate Division,

Third Department.

July 14, 1994.

Joanne M. Miner, Legal Aid (Wendy Cortes, law intern), Ithaca, for appellant-respondent.

Nicholas E. Tishler, Niskayuna, for respondent-appellant.

Before MERCURE, J.P., and WHITE, CASEY, WEISS and PETERS, JJ.

PETERS, Justice.

Cross appeals from an order of the Family Court of of Tompkins County (Barrett, J.), entered April 2, 1993, which partially granted petitioner's application, in a proceeding pursuant to Family Court Act article 5, to direct respondent to pay for support of his child.

By petition dated June 21, 1991, petitioner commenced this paternity and support proceeding concerning her then nine-year-old child, Blake. Subsequently, the parties entered into an agreement regarding paternity and Family Court signed an order of filiation dated December 29, 1992. This appeal concerns child support.

Petitioner has four children, Brandon, Brook, Blake and Olivia. She is a self-employed artist who holds a Bachelor of Arts degree from Smith College as well as a Master in Fine Arts degree from Cornell University. Her employment history reveals various jobs over the course of the years, some unrelated to her training. On her last available Federal tax return, which was for the year 1990, petitioner reported an annual salary of $17,355. Petitioner alleges, however, that she is now only able to generate less than $2,000 annually due to a spinal condition and a recurring "open sore" that prevents her from sitting for long periods of time. Petitioner further alleges that several other factors restrict her ability to be employed which include the "special needs" problems pertaining to her older son, a lack of dependable transportation, residence in a rural community, the fact that she is nursing her youngest child and the "demands of her vocation as an artist". She receives $200 per week in child support from the father of Brandon and Brook and currently lives with a college professor who earns approximately $36,000 annually and is the father of her youngest child, Olivia.

Respondent is married and has four children from such marriage. He is a salesperson with a company in Massachusetts and earns a gross annual salary of approximately $40,000 while his wife, a nurse, earns approximately $26,610 annually. He and his wife own two houses in Massachusetts: their marital residence, assessed at $89,300, and rental property, assessed at $87,100. Respondent receives income from the rental property in the amount of $550 per month, owns three vehicles in addition to a company car, has stocks, bonds and mutual funds valued at $4,100, and a pension valued at $2,900.

After a hearing, the Hearing Examiner calculated the combined parental income and determined that for purposes of the Child Support Standards Act (Family Ct. Act § 413) (hereinafter the Act) respondent's annual income, after necessary deductions, is $38,532 or $741 per week. The Hearing Examiner then imputed to petitioner, based upon her earning capacity, an annual income, after necessary deductions, of $16,016 or $308 per week. The Hearing Examiner therefore ordered, inter alia, that respondent pay petitioner $126 per week for the support of Blake, which represents 70.6% of the combined parental income. The Hearing Examiner further ordered that respondent pay 50% of the child's unreimbursed health care expenses. Both parties filed objections to the Hearing Examiner's amended order which were denied by Family Court. The parties cross-appeal.

Petitioner first contends that the Hearing Examiner incorrectly calculated her income by basing it upon her earnings in 1990. We note that considerable discretion is given to the Hearing Examiner to attribute or impute income to a parent (see, Family Ct. Act § 413[1][b][5] and that it may be based upon a prior employment experience (see, Matter of Berg v. O'Leary, 193 A.D.2d 732, 733, 597 N.Y.S.2d 733), as well as such parent's future earning capacity in light of that party's educational background (see, Matter of Gray v. Gray, 199 A.D.2d 644, 604 N.Y.S.2d 987; Creem v. Creem, 121 A.D.2d 676, 677, 504 N.Y.S.2d 444). Significantly, we find that the amount imputed to petitioner was based upon the most recent Federal tax return provided by petitioner (see, Family Ct. Act § 413[1][b][5][i], and although petitioner claims, inter alia, that medical problems limit her ability to work, no evidence was submitted, other than petitioner's general and conclusory testimony, to support such claim. The testimony revealed that petitioner has a superior educational background and has received numerous international awards as a result of her work. We further find that petitioner has been pursued to exhibit her art internationally, yet claims, in the totality of these circumstances, to only earn $2,000 annually. Based upon the record before us, we find that since the Hearing Examiner was in the best position to hear and evaluate the evidence as well as the credibility of the witnesses (see, Matter of Berg v. O'Leary, supra, 193 A.D.2d at 733-734, 597 N.Y.S.2d 733; Quinn v. Quinn, 145 A.D.2d 754, 756, 535 N.Y.S.2d 270), we decline to disturb the findings made (see, Matter of La Blanc v. La Blanc, 96 A.D.2d 670, 466 N.Y.S.2d 494).

With respect to respondent's contentions that the Hearing Examiner should have attributed more income to petitioner and deviated from the Act based upon the needs of the other children in his household, we find that testimony concerning respondent's earnings, rental income as well as other available income and assets fully supports the Hearing Examiner's determination weighing the relative financial positions of the parties and evaluating their testimony (see, Matter of Berg v. O'Leary, supra; Matter of Miller v. Davis, 176 A.D.2d 945, 575 N.Y.S.2d 681; Quinn v. Quinn...