| Matter of Feng Lucy Luo v Yang |
| 2011 NY Slip Op 08362 [89 AD3d 946] |
| November 15, 2011 |
| Appellate Division, Second Department |
| In the Matter of Feng Lucy Luo, Respondent-Appellant, v TomT. Yang, Appellant-Respondent. |
—[*1] Gary E. Lane, Poughkeepsie, N.Y., for respondent-appellant.
In a child support proceeding pursuant to Family Court Act article 4, the father appeals, as limitedby his brief, from so much of an order of the Family Court, Dutchess County (Posner, J.), datedFebruary 3, 2011, as denied his objections to an order of the same court (Greenblatt, S.M.) datedSeptember 17, 2010, which, after a hearing, granted the mother's petition for an upward modificationof his child support obligation, and the mother cross-appeals, as limited by her brief, from so much ofthe order dated February 3, 2011, as denied her objections to the order dated September 17, 2010,allocating to her only one half of the sum determined to be reasonable to meet the needs of the children.
Ordered that the order dated February 3, 2011, is affirmed insofar as appealed andcross-appealed from, without costs or disbursements.
The father failed to file a sworn financial disclosure affidavit (see Family Ct Act §424-a) and failed to comply with discovery demands. Under these circumstances, the SupportMagistrate did not err in precluding the father from offering evidence as to his financial ability to paychild support (see Family Ct Act § 424-a [b]; Lotardo v Lotardo, 31 AD3d 504, 505 [2006]). Moreover, since therewas insufficient evidence to determine the father's gross income, the Family Court properly denied hisobjections to the Support Magistrate's determination based upon the needs of the children (seeFamily Ct Act § 413 [1] [k]; Matter of Tsarova v Tsarov, 59 AD3d 632 [2009]; Matter of Saladin v Vicari, 23 AD3d215 [2005]; Matter of Denham vKaplan, 16 AD3d 685 [2005]; Matter of Kondratyeva v Yapi, 13 AD3d 376 [2004]; Matter ofGrossman v Grossman, 248 AD2d 536 [1998]). Furthermore, the Support Magistrate hadsufficient evidence to determine the needs of the children (see Baruch v Blum, 301 AD2d 479[2003]). Great deference should be given to the credibility determination of the Support Magistrate,who is in the best position to assess the credibility of the witnesses (see Matter of Tsarova v Tsarov, 59 AD3d 632 [2009]; Matter of Fragola v Alfaro, 45 AD3d684, 685 [2007]; Matter of Musarra vMusarra, 28 AD3d 668, 669 [2006]). The record supports the Support Magistrate'sassessment of the mother's credibility on the issue of the needs of the children.[*2]
The father's claim of prejudice or bias on the part of theSupport Magistrate is improperly based in large part upon matter dehors the record (see Matter of Neuhauser v Eisenberger, 77AD3d 951 [2010]). Contrary to the father's contention, there is no evidence in the record that theSupport Magistrate was prejudiced or biased against him and deprived him of a fair hearing (see Matter of Zeman v Knibbs, 86 AD3d578 [2011]; Matter of Richardson vRichardson, 80 AD3d 32, 44-45 [2010]; Matter of Jeannie B. v Roger D., 33 AD3d 994 [2006]; Matter ofGrossman v Grossman, 238 AD2d 339 [1997]).
To the extent that the father raises an issue on appeal regarding his written application for anapportionment of the costs he incurred in obtaining and reproducing transcripts of the hearing, thatapplication was not addressed by the Family Court. Accordingly, his application remains pending andundecided (see Katz v Katz, 68 AD2d 536 [1979]).
The father's remaining contentions are not properly before this Court, as they were not raised in hisobjections to the Support Magistrate's order (see Matter of Forman v Frost, 67 AD3d 908 [2009]; Matter of Primus v Mason-Primus, 63AD3d 743, 744 [2009]; Matter of Corrv Corr, 3 AD3d 567 [2004]), or without merit.
Contrary to the mother's contention, the Family Court properly denied her objections to theSupport Magistrate's determination allocating to her one half of the sum determined to be reasonable tomeet the needs of the children, given her means and earning capacity (see Family Ct Act§ 413 [1] [a]). Angiolillo, J.P., Florio, Leventhal and Cohen, JJ., concur.