| Matter of Simmons v Simmons |
| 2008 NY Slip Op 01552 [48 AD3d 691] |
| February 19, 2008 |
| Appellate Division, Second Department |
| In the Matter of Tracy Simmons, Appellant, v JeffSimmons, Respondent. |
—[*1] Natiss Gordon & Rockitter P.C., Roslyn, N.Y. (Kevin E. Rockitter and Shalom A. Schwartzof counsel), for respondent.
In a child support proceeding pursuant to Family Court Act article 4, the mother appeals, aslimited by her brief, from stated portions of an order of the Family Court, Nassau County(Pessala, J.), dated October 12, 2006, which, inter alia, denied her cross objections to so much ofan order of the same court (Kahlon, S.M.), dated April 19, 2006, as, after a hearing, directed thefather to pay child support in the sum of only $447 per week and to provide only 67% of alluncovered and unreimbursed health-related expenses of the parties' child.
Ordered that the order dated October 12, 2006 is modified, on the facts and in the exercise ofdiscretion, by deleting the provision thereof denying the mother's cross objections to so much ofthe order dated April 19, 2006, as directed the father to pay child support in the sum of $447 perweek and to provide 67% of all uncovered and unreimbursed health-related expenses of theparties' child and substituting therefor a provision sustaining those cross objections to the extentof directing the father to pay child support in the amount of $485 per week and to provide 84% ofall uncovered and unreimbursed health-related expenses of the parties' child; as so modified, theorder is affirmed insofar as appealed from, without costs or disbursements.
It is within the discretion of the Family Court to impute income to a parent, either on thebasis of the parent's earning capacity (see Calciano v Calciano, 45 AD3d 515, 516 [2007]; Matter of Moran v Grillo, 44 AD3d859, 861 [2007]; Spreitzer vSpreitzer, 40 AD3d 840, 841 [2007]) or on the basis of "money, goods, or servicesprovided by relatives and friends" (Domestic Relations Law § [*2]240 [1-b] [b] [5] [iv] [D]; Family Ct Act § 413 [1] [b] [5][iv] [D]; see Matter of Abellard v Aime,18 AD3d 653 [2005]; Mellen v Mellen, 260 AD2d 609, 610 [1999]; Matterof Ladd v Suffolk County Dept. of Social Servs., 199 AD2d 393, 394 [1993]). Here,however, the Family Court improvidently exercised its discretion by imputing to the mother both$29,120 in income based upon her past earning experience and $44,123 received from thematernal grandmother. In the circumstances presented here, where the mother chose to pursue herundergraduate degree, rather than obtain employment, and the maternal grandmother supportedher financially so that she could do so, the Family Court should have imputed to her only theemployment earnings that she had foregone. Doing so, the combined parental income would havebeen $176,828 and the father's share of that income would have been 84%. Applying the CSSAguidelines to the combined parental income, as the Family Court did, the father's weekly childsupport obligation should be $485 and the father's responsibility for the uncovered andunreimbursed health-related expenses of the child should have been set at 84%.
Contrary to the mother's contention, the Support Magistrate did not deprive her of theopportunity to challenge the father's financial disclosure documents.
The mother's remaining contentions are either unpreserved for appellate review or based onmatter dehors the record and not properly before us. Spolzino, J.P., Santucci, Angiolillo andCarni, JJ., concur.