| Rossiter v Rossiter |
| 2008 NY Slip Op 09145 [56 AD3d 1011] |
| November 20, 2008 |
| Appellate Division, Third Department |
| Tamara Rossiter, Respondent, v Brian D. Rossiter,Appellant. |
—[*1] JoAnn E. Coughtry, Altamont, for respondent.
Kavanagh, J. Appeal from an order of the Family Court of Rensselaer County (Griffin, J.),entered July 5, 2007, which, among other things, upon referral of the matter from SupremeCourt, directed defendant to pay child support.
After the parties were divorced, and issues regarding child support were referred to FamilyCourt, the Support Magistrate determined that the biweekly, basic child support obligation fordefendant (hereinafter the father) was $427.80—including additional expenses—andthat he owed arrears on this obligation in excess of $20,000. The father filed objections andFamily Court affirmed the order. The father now appeals, essentially raising three issues. First, healleges that the Support Magistrate failed to impute as income $1,230 that plaintiff (hereinafterthe mother) received each month from her father to pay her mortgage. Second, the father arguesthat the Support Magistrate's conclusion that the mother was the custodial parent for childsupport purposes is not supported by the credible evidence. Finally, the father maintains that theamount of child support and arrears that has been awarded is unjust and inappropriate. Becausewe find that the Support Magistrate's determinations on each of these issues enjoy ample supportin the record, we affirm.[FN1][*2]
As for the Support Magistrate's refusal to consider themoney that the mother received each month from her father as income, no evidence was offeredby the father to contradict the mother's testimony that this money was a loan. The mothertestified that she would "eventually have to pay [her] father back, its [sic] not a gift."While it is true that "for purposes of determining the amount of a parent's child supportobligation, a court has the discretion to impute income where the parent receives financialsupport from a relative," competent evidence must be submitted to support such a finding(Matter of Phelps v La Point, 284 AD2d 605, 609 [2001]; see Matter of Collins vCollins, 241 AD2d 725, 727 [1997], appeal dismissed and lv denied 91 NY2d 829[1997]). Since the mother's testimony in this regard is essentially unrefuted, and according duedeference to the Support Magistrate's determinations as to the credibility of the evidenceintroduced, we cannot conclude that the decision not to impute these funds as income was anabuse of discretion (see Matter ofYarinsky v Yarinsky, 36 AD3d 1135, 1138-1139 [2007]).
We also find no error in the Support Magistrate's conclusion that the mother was thechildren's primary custodial parent for child support purposes. In that regard, the SupportMagistrate found that from December 2004 until January 2006, the mother, in effect, had custodyof the children four days each week. After that time, the parties agreed that the children would bein the mother's care for most of the time during the week and with the father on theweekends.[FN2]As such, the mother had "physical custody of the child[ren] for a majority of time" and, therefore,was the custodial parent (Bast v Rossoff, 91 NY2d 723, 728 [1998]; see Matter of Minter-Litchmore vLitchmore, 24 AD3d 932, 933 [2005]).
Finally, we cannot agree that the Support Magistrate's calculation of the amount of thefather's child support obligation was, under the circumstances as presented, unjust andinappropriate (see Family Ct Act § 413 [1] [f], [g]). After making the appropriatedeductions for FICA, the Support Magistrate determined that the father had a 51% pro rata shareof the parties' combined annual income of $184,163.02. The Support Magistrate capped theparties' income at $80,000 and, in determining the amount of the award, took into account theappropriate factors, including the significant amount of time that the father spent with thechildren (see Matter of Cassano v Cassano, 85 NY2d 649, 653 [1995]; Matter ofYarinsky v Yarinsky, 36 AD3d at 1138-1139; Matter of Fuller v Witte, 22 AD3d 983, 984 [2005]). Given theSupport Magistrate's use of appropriate criteria in making this calculation, we ascertain no reasonto change the child [*3]support award, or the resulting awardregarding arrears owed by the father.
Cardona, P.J., Peters and Carpinello, JJ., concur. Ordered that the order is affirmed, withoutcosts.
Footnote 1: To the extent that the motherargues that the appeal should be dismissed because the father failed to submit proof that heserved his objections to the Support Magistrate's order on the mother's counsel pursuant toFamily Ct Act § 439 (e), we note that Family Court, while acknowledging this proceduraldefect, addressed the merits of the objections. As we do not find that Family Court abused itsdiscretion in undertaking such a review (see Matter of Ogborn v Hilts, 262 AD2d 857,858 [1999]), we disagree with the mother's claim that the father's appeal is precluded.
Footnote 2: The father alternatively arguedthat the parties shared parenting time equally. Under this alternative theory, the father argued thatthe mother had a greater pro rata share of the parties' combined income and should be required topay child support to the father (see Baraby v Baraby, 250 AD2d 201, 203 [1998]). Thisalternative argument is unpersuasive, given our conclusion that the mother was the custodialparent.