| Gorelik v Gorelik |
| 2010 NY Slip Op 01922 [71 AD3d 730] |
| March 9, 2010 |
| Appellate Division, Second Department |
| Gennady Gorelik, Appellant, v Elena Gorelik,Respondent. |
—[*1] Henry J. Boitel, Rockville Centre, N.Y., for respondent.
In a matrimonial action in which the parties were divorced by judgment dated February 10,1997, the plaintiff former husband appeals from so much of an order of the Supreme Court,Kings County (Ambrosio, J.), dated July 14, 2008, as, upon denying his motion to reject thereport of a judicial hearing officer of the same court (Gans, J.H.O.), dated December 10, 2007,recommending, inter alia, after a hearing, that his motion for downward modification of his childsupport obligation be granted only to the extent of reducing his monthly child support obligationto the sum of $1,125 per month, upon imputing annual income in the sum of $105,000 to himand capping combined parental income at $100,000, and upon granting that branch of thedefendant's motion which was, in effect, to reject so much of the report as capped combinedparental income at $100,000, and to use the total combined income of $180,232.50 to determinechild support, only reduced his basic child support obligation to the sum of $460 per week, andawarded the defendant child support arrears in the sum of $97,344.
Ordered that the order is affirmed insofar as appealed from, with costs.
The plaintiff's contention that the Supreme Court improperly imputed income to him indetermining his child support obligation is without merit. In determining a party's child supportobligation, "a court need not rely upon the party's own account of his or her finances, but mayimpute income based upon the party's past income or demonstrated earning potential" (Herlitz-Ferguson v Herlitz-Ferguson,48 AD3d 418, 419 [2008] [internal quotation marks omitted]; see Morrissey vMorrissey, 259 AD2d 472, 472-473 [1999]). The level of child support is determined by theparents' ability to provide for their children rather than their current economic situation (seeMatter of Zwick v Kulhan, 226 AD2d 734 [1996]). Here, the Supreme Court properlyimputed an annual income of $105,000 to the plaintiff based on his own testimony, and theevidence adduced at the hearing (seePowers v Wilson, 56 AD3d 639, 641 [2008]; Baffi v Baffi, 24 AD3d 578 [2005]).
Contrary to the plaintiff's contention, the Supreme Court correctly declined to give collateralestoppel effect to the finding made in a Bankruptcy Court order (entered in adversaryproceedings between the parties) as to his financial circumstances, in the absence of an identityof issues actually litigated and decided between those proceedings and the within action (seegenerally [*2]Davidson v American Bio Medica Corp., 299AD2d 390 [2002]; Shapiro v Congregation B'Nai Abraham of E. Flatbush, 100 AD2d847 [1984]).
The plaintiff's remaining contentions are either not preserved for appellate review or withoutmerit. Skelos, J.P., Balkin, Leventhal and Lott, JJ., concur.