| Matter of Niagara County Dept. of Social Servs. v Hueber |
| 2011 NY Slip Op 08007 [89 AD3d 1440] |
| November 10, 2011 |
| Appellate Division, Fourth Department |
| In the Matter of Niagara County Department of Social Services, onBehalf of Theresa A. Kearns, Respondent, v Roger L. Hueber, Appellant. (Appeal No.2.) |
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Appeal from an order of the Family Court, Niagara County (John F. Batt, J.), entered November10, 2010 in a proceeding pursuant to Family Court Act article 4. The order denied respondent's writtenobjections to an order of support issued by the Support Magistrate.
It is hereby ordered that the order so appealed from is unanimously affirmed without costs.
Memorandum: In this proceeding pursuant to Family Court Act article 4, respondent father appealsfrom an order denying his objections to the order of the Support Magistrate that, inter alia, imputedincome to him based on the minimum wage for a period of approximately one year and two weeks andordered that he pay child support arrears for that period in the amount of $659.18. It is undisputed thatthe father was incarcerated during the relevant time period.
Contrary to the father's contention, the Support Magistrate did not abuse her discretion by imputingincome to the father for the time period in question for the purpose of calculating his child supportobligation, despite the fact that he was incarcerated during that period. To the extent that the father'sfinancial hardship is the result of his own wrongful conduct, he is not entitled to a reduction of his childsupport obligation (see Matter of Grettler vGrettler, 12 AD3d 602 [2004]; Matter of Winn v Baker, 2 AD3d 1169 [2003]; see generally Matterof Knights v Knights, 71 NY2d 865, 866-867 [1988]). We reject the father's further contentionthat 50% of the child support obligation should be apportioned to the child's noncustodial mother.There is no evidence in the record that the mother had any income or was capable of earning income.Thus, the mother's pro rata share of the child support obligation is zero (see generally FamilyCt Act § 413 [1] [c] [2]).
The father's contention that the Support Magistrate should have calculated his support obligationusing the statutory percentage for two children rather than the statutory percentage for one child is notpreserved for our review inasmuch as it is raised for the first time on appeal (see generally Matter of Erie County Dept. ofSocial Servs. v Shaw, 81 AD3d 1328 [2011]; Matter of White v Knapp, 66 AD3d 1358 [2009]). In any event, thatcontention is without merit because the father is the parent of only one child in the household inquestion. "The basic child support obligation must be determined on a per household basis[,] and it isinappropriate to use a percentage [that] is [*2]based on a total numberof children living in different households" (Buck v Buck, 195 AD2d 818, 818 [1993]; seeMatter of Slocum v Robertson, 217 AD2d 940 [1995]).
Contrary to the father's further contention, petitioner was not required to produce the child'scustodian (hereafter, custodian) on whose behalf the proceeding was commenced at the hearing on thepetition (see generally Family Ct Act §§ 415, 422 [a]; Matter of Departmentof Social Servs. v Richard A., 138 AD2d 487 [1988], lv denied 72 NY2d 804 [1988]).Furthermore, "if [the father] wished to challenge [the custodian's] eligibility for welfare, he should havedone so at the . . . hearing. [Inasmuch as] he had the opportunity to be heard at that time,he was not deprived of due process" (Matter of Commissioner of Social Servs. of City of N.Y. vRemy K.Y., 298 AD2d 261, 262 [2002]). In any event, petitioner presented documentaryevidence that the custodian and the child received public assistance during the relevant time period, andgreat deference should be given to the Support Magistrate's evaluation of the proffered evidence (see Matter of Manocchio v Manocchio, 16AD3d 1126, 1128 [2005]).
Finally, contrary to the father's contention, Family Court properly refused to consider the exhibitssubmitted in support of the father's written objections because they "were not offered by the father atthe . . . [hearing] before the Support Magistrate" (Matter of Williams v Williams, 37 AD3d 843, 844 [2007]; see alsoMatter of Lahrs v Lahrs, 158 AD2d 944 [1990]). Present—Fahey, J.P., Carni, Sconiers,Gorski and Martoche, JJ.