| Matter of Rohme v Burns |
| 2010 NY Slip Op 09143 [79 AD3d 756] |
| December 7, 2010 |
| Appellate Division, Second Department |
| In the Matter of Alison J. Rohme, Respondent, v James M.Burns, Appellant. |
—[*1] Robert J. Del Col, Smithtown, N.Y., for respondent.
In a support proceeding pursuant to Family Court Act article 4, the father appeals from an order ofthe Family Court, Suffolk County (Hoffmann, J.), dated March 9, 2010, which denied his objections toan order of the same court (Raimondi, S.M.), dated January 13, 2010, which, upon findings of factdated January 11, 2010, made after a hearing, imputed to him an income of $100,000 per year, andfound him responsible for 60% of the subject child's support, unreimbursed medical expenses, andprivate school tuition.
Ordered that the order dated March 9, 2010, is reversed, on the law, without costs ordisbursements, and the matter is remitted to the Family Court, Suffolk County, for a new determinationof the father's objections following a report from the Support Magistrate on the issues of the specificsources of income imputed to the father, the actual dollar amounts assigned to each category, and theresultant calculations pursuant to Family Court Act § 413 (1) (c); and it is further,
Ordered that, pending the new determination of the father's objections, the father shall continue tobe responsible for 60% of the subject child's support, unreimbursed medical expenses, and privateschool tuition.
A court need not rely upon a party's own account of his or her finances, but may impute incomebased upon the party's past income or demonstrated future potential earnings (see Brown vBrown, 239 AD2d 535 [1997]). The court may impute income to a party based on the party'semployment history, future earning capacity, educational background, or money received from friendsand relatives (see Matter of Collins v Collins, 241 AD2d 725, 727 [1997]). Where a party'saccount is not credible, the court may impute an income higher than claimed (see Lilikakis vLilikakis, 308 AD2d 435, 436 [2003]). However, "in exercising the discretion to impute income toa party, a Support Magistrate is required to provide a clear record of the source from which the incomeis imputed and the reasons for such imputation" (Matter of Kristy Helen T. v Richard F.G., 17 AD3d 684, 685 [2005]).Where the Support Magistrate fails to specify the sources of income imputed and the actual dollaramount assigned to each category, the record is not sufficiently developed to allow appellate review(id. at 685; see Matter of Sena vSena, 61 AD3d 980, [*2]981 [2009]; Matter of Genender v Genender, 40 AD3d994, 995 [2007]).
We agree with the Family Court that the father's testimony regarding his income and earningcapacity was not credible. However, the Support Magistrate failed to state how he arrived at theimputed income figure of $100,000 per year. We therefore remit the matter to the Family Court for areport from the Support Magistrate on the issues of the specific sources of income imputed to thefather, the actual dollar amounts assigned to each category, and the resultant calculations pursuant toFamily Court Act § 413 (1) (c), and thereafter a new determination of the objections. Mastro,J.P., Florio, Leventhal and Sgroi, JJ., concur.