| Matter of Tosques v Ponyicky |
| 2011 NY Slip Op 08765 [89 AD3d 1097] |
| November 29, 2011 |
| Appellate Division, Second Department |
| In the Matter of Laura A. Tosques, Appellant, v Russell L.Ponyicky, Respondent. |
—[*1] Grundfast & Williams, Stony Brook, N.Y. (Taya N. Williams and Penny S. Slomovitz-Glaser ofcounsel), for respondent.
In a child support proceeding pursuant to Family Court Act article 4, the mother appeals (1) froman order of the Family Court, Suffolk County (Hoffmann, J.), dated November 1, 2010, (2) fromstated portions of an amended order of support of the same court (Fields, S.M.), dated November 24,2010, and (3), as limited by her brief, from so much of an order of the same court (Hoffmann, J.),dated January 7, 2011, as denied her objections to stated portions of an order of support of the samecourt (Fields, S.M.), dated July 13, 2010, and the amended order of support dated November 24,2010, which, inter alia, imputed income to her based on her earning capacity, and set a paymentschedule for retroactive support.
Ordered that the appeal from the order dated November 1, 2010, is dismissed as abandoned; andit is further,
Ordered that the appeal from the amended order of support dated November 24, 2010, isdismissed, as that order was superseded by the order dated January 7, 2011; and it is further,
Ordered that the order dated January 7, 2011, is modified, on the law, by deleting the provisionthereof denying the objections to so much of the order of support dated July 13, 2010, and theamended order of support dated November 24, 2010, as set a payment schedule for retroactivesupport, and substituting therefor a provision granting the objections to those portions of the order ofsupport dated July 13, 2010, and the amended order of support dated November 24, 2010; as somodified, the order dated January 7, 2011, is affirmed insofar as appealed from, and the order ofsupport dated July 13, 2010, and the amended order of support dated November 24, 2010, aremodified accordingly; and it is further,
Ordered that one bill of costs is awarded to the father, payable by the mother.
Family Court Act § 440 (1) (a) provides that when an order of support is to be enforced bythe support collection unit (hereinafter the SCU), the Family Court must establish the amount ofretroactive support and notify the parties that the SCU will enforce that amount "pursuant to an [*2]execution for support enforcement as provided for in [CPLR 5241 (b)],or in such periodic payments as would have been authorized had such an execution been issued"(Family Ct Act § 440 [1] [a]). The statute further provides that in such case, "the court shall notdirect the schedule of repayment of retroactive support" (id.; see Matter of Commissionerof Social Servs. of City of N.Y. v Daryl S., 235 AD2d 126, 131 [1997]). Here, the SupportMagistrate's order of support dated July 13, 2010, and amended order of support dated November24, 2010, directed that such orders would be enforced by the SCU. The mother correctly contendsthat the Support Magistrate erred in setting a payment schedule for retroactive support rather thanestablishing the amount of retroactive support owed and allowing the SCU to establish such a schedulepursuant to CPLR 5241 (b). Accordingly, the Family Court should have granted her objections tothose portions of the orders that set a payment schedule for retroactive support.
Contrary to the mother's contention, however, the Support Magistrate providently exercised herdiscretion in imputing income to the mother based on her earning capacity (see Matter of Rohme v Burns, 79 AD3d756, 757 [2010]; Matter of Kennedy vVentimiglia, 73 AD3d 1066, 1067 [2010]; Matter of Maharaj-Ellis v Laroche, 54 AD3d 677 [2008]). Accordingly,the Family Court properly denied her objections to so much of the orders as imputed income to herbased on her earning capacity.
The mother's contention that the Support Magistrate erred in directing the issuance of an incomededuction rather than an income execution is not properly before this Court, as it was not raised in herobjections to the Support Magistrate's orders (see Matter of Betancourt v Betancourt, 71 AD3d 764, 765 [2010]).
The mother's remaining contentions are without merit. Mastro, J.P., Florio, Lott and Cohen, JJ.,concur.