| Matter of Bibicoff v Orfanakis |
| 2008 NY Slip Op 01540 [48 AD3d 680] |
| February 19, 2008 |
| Appellate Division, Second Department |
| In the Matter of Danielle L. Bibicoff,Respondent, v Nicholas Orfanakis, Appellant. |
—[*1] Danielle L. Bibicoff, Elmont, N.Y., respondent pro se.
In a child support proceeding pursuant to Family Court Act article 4, the father appeals froman order of the Family Court, Nassau County (Grella, J.), dated February 14, 2007, which deniedhis objection to an order of the same court (Dwyer, S.M.), dated December 18, 2006, granting,after a hearing, the mother's petition for an upward modification of his child support obligation asset forth in a prior support order dated March 29, 2005, and increasing his child supportobligation from the sum of $75 per week to the sum of $195 per week.
Ordered that the order dated February 14, 2007 is affirmed, with costs.
The unmarried parties' daughter was born on February 25, 2005. Shortly thereafter, pursuantto a support order dated March 29, 2005, the father began paying the mother the sum of $75 perweek in child support. On October 24, 2006 the mother filed a petition to modify the supportorder on the ground, inter alia, that she was now working and had additional expenses for childcare. A hearing was held before a Support Magistrate. When the mother advised the SupportMagistrate that she wished to withdraw the petition, the Support Magistrate explained that, if shedid so, she would no longer receive any subsidy from the Department of Social Services, and theparties would be responsible for paying the entire cost of day care themselves. The fathertestified that he worked for his own father selling cars, for which he was paid the sum ofapproximately $175 per week. The court imputed annual income of $25,000 to the father andissued an order finding that the parties had [*2]voluntarilystipulated to child support, payable by the father to the mother, in the sum of $195 per week,representing a basic child support obligation in the sum of $75 per week, and an obligation in thesum of $120 per week for child care expenses. The father filed objections to the order, asserting,inter alia, that he had not consented to the order and that there was no basis for imputing to himincome of $25,000. The Family Court denied the objections. We affirm.
"A support magistrate is afforded considerable discretion in determining whether to imputeincome to a parent . . . and that determination may properly be based upon aparent's prior employment experience . . . or the income such parent is capable ofearning by honest efforts, given his [or her] education and opportunities" (Matter of Thompson v Perez, 42 AD3d503, 504 [2007], lv denied 9 NY3d 818 [2008] [internal quotation marks andcitations omitted]; see Matter of Strellav Ferro, 42 AD3d 544 [2007]; Matter of Genender v Genender, 40 AD3d 994 [2007]; Matter of Kristy Helen T. v RichardF.G., 17 AD3d 684, 685 [2005]).
Here, the Support Magistrate properly imputed to the father annual income of $25,000 basedon his 2004 income tax return, which indicated that he earned the sum $15,960 for what hetestified was approximately six months of work. The father states in his brief that he has no skillsand no ability to do any work other than that which he is now doing, but he submitted noevidence at the hearing that he is not capable of earning more than the sum of $175 per week thathis father pays him to sell cars three or four days per week. Rather, it appears from the recordthat, since 2004, when the father was working for National Maintenance, Inc., and going tocollege, he failed to make any attempt to find a higher-paying job or to continue his education.Under these circumstances, the Support Magistrate providently exercised her discretion inimputing to the father annual income of $25,000 (see Matter of Strella v Ferro, 42 AD3d 544 [2007]; Hodges v Hodges, 35 AD3d 370[2006]; Curran v Curran, 2 AD3d391 [2003]).
Contrary to the father's expressed understanding, as set forth in his submissions to the FamilyCourt and at the hearing, his consent was not necessary for the court to grant the mother's petitionfor an upward modification of his child support obligation. The mother established the requisitechange in circumstances by proof that she had begun to work, and that the child was in daycare.Pursuant to Family Court Act § 413 (1) (c) (4), the father is responsible for his share ofthat expense, to be "computed by prorating the parent's income to the combined parental income"(Matter of D'Avanzo v Papa, 18AD3d 658, 659 [2005]), with or without his consent. Based on his imputed income of$25,000, the Support Magistrate properly calculated the father's pro rata share of the child careexpense to be the sum of $120 per week, in addition to the sum of $75 per week of basic childsupport previously agreed to by the parties.
The father's remaining contention is not properly before this Court. Mastro, J.P., Skelos,Florio and Dickerson, JJ., concur.