| Matter of Kasabian v Chichester |
| 2010 NY Slip Op 02691 [72 AD3d 1141] |
| April 1, 2010 |
| Appellate Division, Third Department |
| In the Matter of Elizabeth Kasabian, Respondent, v Donald WayneChichester, Appellant. |
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Peters, J.P. Appeal from an order of the Family Court of Schoharie County (Bartlett, III, J.),entered June 18, 2008, which granted petitioner's application, in a proceeding pursuant to FamilyCt Act article 4, to direct respondent to pay child support.
In April 2007, petitioner commenced the instant proceeding seeking child support for threeof the parties' five children, all of whom live with her in Louisiana. A hearing ensued, at theconclusion of which the Support Magistrate imputed $38,690 of annual income to respondentand established his weekly child support obligation. Family Court denied respondent's objectionsto the Support Magistrate's order, prompting this appeal.
Family Court properly sustained the Support Magistrate's determination imputing an annualincome of $38,690 to respondent. "It is well settled that a parent's child support obligation isdetermined by his or her ability to provide support, rather than the parent's current financialsituation" (Matter of Rubley vLongworth, 35 AD3d 1129, 1130 [2006] [citations omitted], lv denied 8 NY3d811 [2007]; see Matter of Kelly vBovee, 9 AD3d 641, 641 [2004]). Nor is a court constrained by a parent's account of hisor her finances. Rather, it is accorded considerable discretion to impute income based on theparent's prior employment experience and future earning capacity (see Bean v Bean, 53 AD3d 718,722 [2008]; Matter of Kelly v Bovee, 9 AD3d [*2]at 642;Orlando v Orlando, 222 AD2d 906, 907 [1995], lv dismissed and denied 87NY2d 1052 [1996]).
Here, the sole financial documentation provided by respondent was a 2007 income tax returnindicating that he had no personal income. Respondent testified that he has had no income since1999 and filed the 2007 tax return in order to receive an economic stimulus check.[FN1]The bulk of the testimony at the hearing concerned respondent's association with variousbusinesses involved in the buying and selling of cars. Succinctly stated, respondent disclaimedany income or other financial benefit from these companies that are currently "owned" by hischildren, petitioner or his fiancÉe, but which he previously owned or had an interest in.The Support Magistrate found that respondent has "hidden behind the veil of corporations tohide income and avoid his responsibility to support his children" and his "testimony on thewhole lacked credibility." According to the Support Magistrate, the only reliable evidenceconcerning respondent's earning capacity was his testimony that he possessed a commercialdriver's license. Although he never attempted to obtain employment as a commercial trucker, theSupport Magistrate determined that respondent had the ability to earn an annual income of atleast $38,690, the average amount earned by a general freight trucker as established by statisticsfrom the United States Department of Labor.[FN2]Given the paucity of proof in this record and according deference to the Support Magistrate'scredibility determinations, we cannot conclude that the imputation of $38,690 in income torespondent was an abuse of discretion (see Moffre v Moffre, 29 AD3d 1149, 1150-1151 [2006];Matter of Kelly v Bovee, 9 AD3d at 642; Spencer v Spencer, 298 AD2d 680,681 [2002]). Respondent's remaining challenges to the Support Magistrate's findings are eitherunpreserved due to his failure to advance them in his objections filed with Family Court (see Matter of Renee XX. v John ZZ.,51 AD3d 1090, 1092 [2008]; Matter of Ciampi v Sgueglia, 252 AD2d 755, 757-758[1998]) or have been reviewed and found to be lacking in merit.
Finally, as to respondent's contention that he did not receive the effective assistance ofcounsel, there is no right to counsel in a proceeding to establish an order of child support(see Family Ct Act §§ 261, 262). Thus, absent extraordinary circumstances,which are not present here, respondent "cannot avoid the consequences of the acts or omissionsof his retained counsel and no right to the effective assistance of counsel is implicated" (Drake v Bates, 49 AD3d 1098,1099 [2008] [citations omitted]; seeXiaokang Xu v Xiaoling Shirley He, 24 AD3d 862, 864 [2005], lv denied 6NY3d 710 [2006]; Department of Social Servs. v Trustum C.D., 97 AD2d 831, 831[1983], lv denied 61 NY2d 605 [1984]).
Malone Jr., Kavanagh, McCarthy and Garry, JJ., concur. Ordered that the order is affirmed,without costs.
Footnote 1: According to respondent, he hasbeen residing rent-free with his fiancÉe and otherwise lives "on the good kindness of [hisfiancÉe] and other family members."
Footnote 2: While respondent argued in hisobjections that he possesses a "restricted" commercial driver's license, we find no error in FamilyCourt's refusal to consider the issue inasmuch as there was no testimony to that effect during thehearing nor any indication or assertion that a restricted license would impact his ability andpotential to earn income (see Matter ofRedmond v Easy, 18 AD3d 283, 283-284 [2005]).