| Matter of Azrak v Azrak |
| 2009 NY Slip Op 02354 [60 AD3d 937] |
| March 24, 2009 |
| Appellate Division, Second Department |
| In the Matter of Anthony Azrak, Appellant, v CathleneAzrak, Respondent. |
—[*1] Guttridge & Cambareri, P.C., Tarrytown, N.Y. (John Guttridge of counsel), forrespondent.
In a child support proceeding pursuant to Family Court Act article 4, the father appeals froman order of the Family Court, Westchester County (Klein, J.), entered April 4, 2008, whichdenied his objections to so much of an order of the same court (Cabanillas-Thompson, S.M.),entered October 2, 2007, as, after a hearing, directed him to pay child support in thesemimonthly sum of $3,889.
Ordered that the order entered April 4, 2008, is affirmed, with costs.
In determining a parent's support obligation under the Child Support Standards Act (FamilyCt Act § 413; Domestic Relations Law § 240), the court is required to begin itscalculation with the parent's gross income "as should have been or should be reported in the mostrecent federal income tax return" (Family Ct Act § 413 [1] [b] [5] [i]). The court is alsopermitted to consider current income figures for the tax year not yet completed (see Matter ofMoran v Grillo, 44 AD3d 859, 860 [2007]; Matter of Culhane v Holt, 28 AD3d 251[2006]; Matter of Kellogg v Kellogg, 300 AD2d 996 [2002]). However, "[a] parent'schild support obligation is determined by his or her ability to support the child, and notnecessarily by the parent's current economic situation" (Matter of Maharaj-Ellis v Laroche,54 AD3d 677, 677 [2008]; see Fruchter v Fruchter, 29 AD3d 942, 943 [2006]).Thus, the Family Court may impute income to a parent based, inter alia, upon his or heremployment history and demonstrated earning capacity (see Matter of Maharaj-Ellis vLaroche, 54 AD3d 677 [2008]; Matter of Solis v Marmolejos, 50 AD3d 691, 692[2008]; Bittner v Bittner, 296 AD2d 516, [*2]517[2002]).
Contrary to the father's contention, the Family Court providently exercised its discretion incalculating his child support obligation upon an imputed income of $327,970 per year. It isundisputed that the father's gross income in the tax year preceding the hearing was $321,970, andthat his past earnings over a 10-year period averaged $328,831 per year. Although the fathertestified that his earnings had decreased because he had been discharged from the company heworked for in 2005 and part of 2006, the Family Court's decision to base his support obligationon an imputed income higher than his 2007 salary was supported by evidence of his pastemployment history and demonstrated earning capacity (see Matter of Maharaj-Ellis vLaroche, 54 AD3d 677 [2008]; Matter of Solis v Marmolejos, 50 AD3d 691, 692[2008]; Fruchter v Fruchter, 29 AD3d 942, 943 [2006]; Bittner v Bittner, 296AD2d 516, 517 [2002]). Spolzino, J.P., Santucci, Angiolillo and Eng, JJ., concur.