Zwick v. Kulhan

• Decision Date: 29 April 1996
• Citation: 226 A.D.2d 734,641 N.Y.S.2d 861
• Parties: In the Matter of William A. ZWICK, Respondent, v. Jean KULHAN, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 861

641 N.Y.S.2d 861

226 A.D.2d 734

In the Matter of William A. ZWICK, Respondent, v. Jean KULHAN, Appellant.

Supreme Court, Appellate Division,

Second Department.

April 29, 1996.

Merril Sobie, White Plains, for appellant.

Marilyn J. Slaatten, County Attorney, White Plains (Barbara A. Kukowski, Peter A. Carbone, and Annette Hasapidis-Marshall, of counsel), for respondent.

Before BALLETTA, J.P., and SANTUCCI, KRAUSMAN and FLORIO, JJ.

MEMORANDUM BY THE COURT.

In a child support proceeding pursuant to the Uniform Support of Dependents Law (Domestic Relations Law art 3-A), the mother appeals from an order of the Family Court, Westchester County (Tolbert, J.), entered November 14, 1994, which denied her objections to an amended order of the same court (Mrsich, H.E.), dated September 14, 1994, which, after a hearing, inter alia, ordered her to pay the petitioner father $546 per month in child support, and fixed child support arrears at $9,670.90, and child care arrears at $2,006.40.

ORDERED that the order entered November 14, 1994, is modified, on the facts, by sustaining the mother's objections only to the extent of reducing the amount of child support to $340.70 per month, the amount of child support arrears to $5,777.30, and the amount of child care arrears to $1,337.60, and by reducing the mother's pro-rata share of child support, child care expenses, and health care expenses to 32%; as so modified, the order entered November 14, 1994, is affirmed, without costs or disbursements.

The Hearing Examiner properly imputed $26,000 as income to the mother based on her prior work history (see, Family Ct.Act § 413[1][b][5][v] ). The mother stopped working in July or August 1992 in order to pursue certain legal matters, including her appeal of a separate order granting custody of the parties' child to the father (see, Orlando v. Orlando, 222 A.D.2d 906, 635 N.Y.S.2d 752; see also, Matter of Darling v. Darling, 220 A.D.2d 858, 632 N.Y.S.2d 252; Davis v. Davis, 197 A.D.2d 622, 623, 602 N.Y.S.2d 672). Moreover, the $26,000 figure is supported by the record. Child support is determined by the parents' ability to provide for their child rather than their current economic situation (see, Matter of Darling v. Darling, supra; Moore v. Moore, 115 A.D.2d 894, 896, 496 N.Y.S.2d 583). An imputed income amount is based, in part, upon a parent's past earnings, actual earning capacity, and educational background (see, Matter of Mireille J. v. Ernst F.J., 220 A.D.2d 503, 632 N.Y.S.2d 162; Matter of Susan M. v. Louis N., 206 A.D.2d 612, 613, 614 N.Y.S.2d 584). The record reveals that the mother earned $13,000 in 1992 after working only part of the year. In addition, the mother has a Master's Degree in English, was previously employed as an elementary school teacher, and was a licensed real estate broker and insurance broker.

However, the Hearing Examiner improvidently exercised its discretion by also imputing as income to the mother $23,618 her family paid to cover the mother's expenses during 1993 (see, Family Ct.Act § 413[1][b][5][iv][D] ). By combining this figure with the $26,000 and thus imputing a total income to the mother of $49,618, the Hearing Examiner essentially doubled the mother's annual earnings to be considered in calculating child support. Moreover, there is no evidence in the record indicating that the mother ever earned that amount in the past.

Accordingly, the mother's annual imputed income is reduced to $26,000....