Worfel v. Kime

• Citation: 154 A.D.3d 1143,64 N.Y.S.3d 130 (Mem)
• Parties: In the Matter of Christine M. WORFEL, Respondent, v. Patrick KIME, Appellant.
• Decision Date: 19 October 2017
• Court: New York Supreme Court — Appellate Division

154 A.D.3d 1143
64 N.Y.S.3d 130 (Mem)

In the Matter of Christine M. WORFEL, Respondent,
v.
Patrick KIME, Appellant.

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

Oct. 19, 2017.

Rignanese Law Office, Rome (Lisa S. Cuomo, Dewitt, of Counsel), for appellant.

James P. Roman, Chittenango, for respondent.

Before: McCARTHY, J.P., GARRY, CLARK, MULVEY and RUMSEY, JJ.

GARRY, J.

154 A.D.3d 1144

Appeal from an order of the Family Court of Madison County (O'Sullivan, J.), entered February 24, 2016, which granted

64 N.Y.S.3d 131

petitioner's application, in a proceeding pursuant to Family Ct. Act article 4, for an order of support.

Petitioner (hereinafter the mother) and respondent (hereinafter the father) are the unwed parents of two children (born in 2007 and 2009). In March 2014, the mother sought child support from the father, the noncustodial parent, pursuant to Family Ct. Act article 4. Following a hearing, the Support Magistrate rendered an order directing the father to pay support. The father objected to the order, arguing that the Support Magistrate improperly imputed income to him from his rental properties, his shares in his family's business, and an unpaid debt owed to his parents. Family Court denied the father's objections, finding that the income was appropriately imputed to the father. The father appeals.

A party's gross income is calculated based on that which should have been reported in his or her most recent federal income tax return and any investment income (see Family Ct. Act § 413[1][b][5] ). However, a parent's child support obligation is determined by his or her "ability to provide support, rather than the parent's current financial situation" (Matter of D'Andrea v. Prevost, 128 A.D.3d 1166, 1167, 8 N.Y.S.3d 718 [2015] [internal quotation marks and citation omitted]; accord Arthur v. Arthur, 148 A.D.3d 1254, 1256, 48 N.Y.S.3d 813 [2017] ). In rendering a child support determination, a court is not limited to a parent's account of his or her finances, but has "considerable discretion" to impute additional income to a parent ( Moffre v. Moffre, 29 A.D.3d 1149, 1150, 815 N.Y.S.2d 315 [2006] ; accord Matter of McKenna v. McKenna, 137 A.D.3d 1464, 1465–1466, 27 N.Y.S.3d 740 [2016] ). As pertinent here, income may be imputed to a parent from "such other resources as may be available to the parent, including, but not limited to: ... non-income producing assets" and "money ... provided by relatives" ( Family Ct. Act § 413 [1 ][b][5][iv][A],[D] ). This Court will not disturb a determination to impute income absent a demonstrated abuse of discretion (see Matter of Ross v. Manley, 135 A.D.3d 1104, 1106–1107, 23 N.Y.S.3d 433 [2016] ; Matter of D'Andrea v. Prevost, 128 A.D.3d at 1167, 8 N.Y.S.3d 718 ; Spencer v. Spencer, 298 A.D.2d 680, 681, 748 N.Y.S.2d 809 [2002] ).

First, the father contends that rental income was improperly imputed to him on the basis that fire damage to one of his rental properties resulted in the rentals operating at a loss in 2013. He testified that he had owned one of the rental properties since 2001 and the other since 2005, and acknowledged having "consistently earned some money" during his...