| Matter of Solis v Marmolejos |
| 2008 NY Slip Op 03012 [50 AD3d 691] |
| April 1, 2008 |
| Appellate Division, Second Department |
| In the Matter of Alvaro Solis, Appellant, v OdilisMarmolejos, Respondent. |
—[*1]
In a child support proceeding pursuant to Family Court Act article 4, the father appeals froman order of the Family Court, Westchester County (Horowitz, J.), entered July 9, 2007, which,after a hearing, denied his objections to an order of the same court (Jordan, S.M.), dated May 7,2007, denying his petition for a downward modification of his child support obligation.
Ordered that the order is affirmed, without costs or disbursements.
"A parent's child support obligation is not necessarily determined by his or her currentfinancial condition, but rather by his or her ability to provide support" (Matter of Davis v Davis, 13 AD3d623, 624 [2004]; see Family Ct Act § 413 [1] [a]; Matter of Brunetti v Brunetti, 22 AD3d577, 577-578 [2005]; Beard v Beard, 300 AD2d 268, 269 [2002]; Matter ofFleischmann v Fleischmann, 195 AD2d 604 [1993]). The court is not bound by a party'sactual reported income in applying the basic child support obligation, and instead could use thatparty's actual earning capacity or impute an amount onto the gross income reported by the party(see e.g. Matter of Andre v Brumaire, 299 AD2d 355, 356 [2002]; Matter of Graves vSmith, 284 AD2d 332, 333 [2001]; Matter of Sweedan v Baglio, 269 AD2d 724,725-726 [2000]; Matter of Scomello v Scomello, 260 AD2d 483, 484 [1999]). Here,during the prior support proceeding, the Family Court properly imputed income to the fatherbased upon his failure to provide any credible proof regarding his income and the facts regardinghis employment as a manager at a bar and restaurant, including that his employer paid for his carexpenses.
Having previously and fully litigated the subject of his employment in the prior supportproceeding and having failed to timely seek review of the resulting adverse order of support, thefather now improperly seeks to relitigate that issue in this separate proceeding for a downwardmodification of his child support obligation (see Family Ct Act § 439 [e]; seee.g. Matter of Phelps [*2]v La Point, 284 AD2d 605, 610[2001]). Accordingly, the Family Court properly denied the father's petition on the ground that hefailed to establish a substantial change in circumstances (see Domestic Relations Law§ 236 [B] [9] [b]; Matter ofMarcus v Marcus, 45 AD3d 689, 690 [2007]; Matter of Talty v Talty, 42 AD3d 546, 547 [2007]). Rivera, J.P.,Skelos, Santucci and Leventhal, JJ., concur.