| Matter of Moran v Grillo |
| 2007 NY Slip Op 07846 [44 AD3d 859] |
| October 16, 2007 |
| Appellate Division, Second Department |
| In the Matter of Margaret J. Moran, Appellant, v George G.Grillo, Respondent. |
—[*1] Robert Scott Grossman, P.C., Garden City, N.Y., for respondent.
In a child support proceeding pursuant to Family Court Act article 4, the mother appeals, aslimited by her brief, from so much of an order of the Family Court, Suffolk County (Simeone, J.),dated November 17, 2006, as denied her objections to so much of an order of the same court(Livrieri, S.M.), dated July 18, 2006, as, after a hearing, directed the father to pay child support inthe sum of only $1,321 per month, and directed the father to maintain a life insurance policy inthe amount of only $100,000, with the subject child named as beneficiary and the mother astrustee.
Ordered that the order is modified, on the law and the facts, by deleting the provision thereofdenying the mother's objection to so much of the order dated July 18, 2006, as directed the fatherto maintain a life insurance policy in the amount of only $100,000, with the subject child namedas beneficiary and the mother as trustee, and substituting therefor a provision sustaining thatobjection to the extent of directing the father to maintain a life insurance policy in the fixedamount of $150,000, with the subject child named as beneficiary and the mother as trustee, untilthe child reaches the age of majority; as so modified, the order is affirmed insofar as appealedfrom, without costs or disbursements, and the order dated July 18, 2006 is modified accordingly.
In determining the amount of child support that a parent must pay under the Child SupportStandards Act (Family Ct Act § 413; Domestic Relations Law § 240), the court isrequired to begin the calculation with the parent's "gross (total) income as should have been orshould be reported in the most recent federal income tax return" (Family Ct Act § 413 [1][b] [5] [i]). The court is also permitted, however, to consider current income figures for the taxyear not yet completed (see Matter ofTaraskas v Rizzuto, 38 AD3d 910 [2007]; Matter of Culhane v Holt, 28 AD3d 251, 252 [2006]; Matter ofKellogg v Kellogg, 300 AD2d 996 [2002]).[*2]
Here, the father's 2005 income tax return reflected a grossincome of $77,475. Although the income reported on the father's 2004 tax return, $163,605, wassignificantly higher, the Support Magistrate concluded, based upon testimony that she found tobe credible, that the father's 2004 income was unusually high. "Great deference should be givento the determination of the Support Magistrate, who is in the best position to assess thecredibility of the witnesses and the evidence proffered" (Matter of Musarra v Musarra, 28 AD3d 668, 669 [2006]; see Matter of Mahoney v Goggins, 24AD3d 668, 669 [2005]). Considering, in addition, the evidence that the father had claimed aportion of his personal expenses as business expenses, the Support Magistrate acted properlywithin her discretion in determining the father's income for child support purposes to be$100,000.
The Support Magistrate also did not improvidently exercise her discretion in imputingincome of $20,000 to the mother, based on her previous employment as a nurse, a real estateagent, and an office employee. In determining a parent's child support obligation, the FamilyCourt is not required to rely upon a party's own account of his or her finances, and may imputeincome based on that party's past income or demonstrated earning potential (see Matter of Strella v Ferro, 42 AD3d544, 545-546 [2007]; Matter ofApgar v Apgar, 37 AD3d 598, 599 [2007]; Matter of Talero v Talero, 1 AD3d 522, 523 [2003]).
The father was directed to maintain a policy of insurance on his life in the amount of$100,000. This sum, however, was insufficient. "The plain language of [Domestic Relations Law§ 236 (B) (8) (a)] expressly provides that life insurance may be used as a means to securemaintenance and child support payments, so that dependent spouses and children will beadequately protected" (Hartog v Hartog, 85 NY2d 36, 50 [1995]). In light of the balanceof the father's future child support obligations, the Family Court should have required that thefather maintain a life insurance policy in the amount of the total support due until the childreaches the age of majority (see Corlessv Corless, 18 AD3d 493, 494 [2005]; Weisbard v Missett, 289 AD2d 482, 483[2001]) or a declining term policy that would permit the father to reduce the amount of coverageby the amount of child support actually paid (see Matter of Anonymous v Anonymous, 31 AD3d 955, 957[2006]; Somerville v Somerville, 26AD3d 647, 649-650 [2006]). Considering the amount of child support that the father mustpay is $1,321 per month and the fact that his obligation to do so will continue for more than adecade, the amount of the life insurance policy should have been fixed at $150,000, and not$100,000. Crane, J.P., Spolzino, Krausman and McCarthy, JJ., concur.