| Matter of Bouie v Joseph |
| 2012 NY Slip Op 00205 [91 AD3d 641] |
| Jnury 10, 2012 |
| Appellate Division, Second Department |
| In the Matter of Shirley J. Bouie,Respondent, v Christopher M. Joseph, Appellant. |
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In a support proceeding pursuant to Family Court Act article 4, the father appeals from anorder of the Family Court, Queens County (Fitzmaurice, J.), dated May 7, 2010, which denied hisobjections to an order of the same court (Friederwitzer, S.M.), dated February 23, 2010, granting,upon a fact-finding order of the same court (Friederwitzer, S.M.), dated February 22, 2010, themother's petition for an upward modification in child support and denying his cross petitionseeking a downward modification in child support.
Ordered that the order dated May 7, 2010, is affirmed, without costs or disbursements.
The mother and the father are the parents of a child born on June 11, 1991. The father hadbeen paying $100 per month in child support since October 22, 2007. In August 2008, the motherfiled a petition seeking an upward modification of the father's child support payments, and thefather filed a cross petition seeking a downward modification. At a hearing, the evidencedemonstrated that, shortly after the court ordered the father to pay $100 per month in October of2007, he began receiving social security disability benefits of $1,524 per month. He was alsoreceiving Veterans Affairs benefits of $816 per month and unemployment benefits of $405 permonth at that time.
In a fact-finding order dated February 22, 2010, the Support Magistrate found that the father'schild support obligation of $100 per month had been based on his representation that he earnedno income and received no benefits. The Support Magistrate further found that the father beganreceiving a total of $2,745 per month in benefits immediately after his child support obligationwas set at $100. In an order dated February 23, 2010, the Support Magistrate granted the mother'spetition for an upward modification in child support in the sum of $400.95 per month, and deniedthe father's cross petition for a downward modification. In an order dated May 7, 2010, theFamily Court denied the father's objections to the order modifying his support obligation. Thefather appeals, and we affirm.
The party seeking modification of a support order has the burden of establishing theexistence of a substantial change in circumstances warranting the modification (see Matter of Nieves-Ford v Gordon,47 AD3d 936 [2008]). A court need not rely upon a party's own account of his or [*2]her finances, but may impute income based upon the party's pastincome or demonstrated future potential earnings (see Brown v Brown, 239 AD2d 535[1997]). The court may impute income to a party based on his or her employment history, futureearning capacity, educational background, or money received from friends and relatives (see Matter of LoCasto v Chiofolo, 89AD3d 847 [2011]; Matter of Collins v Collins, 241 AD2d 725, 727 [1997]). Where aparty's account of his or her own finances is not believable, the court may find a true or potentialincome higher than the income claimed (see Matter of Rohme v Burns, 79 AD3d 756, 757 [2010];Lilikakis v Lilikakis, 308 AD2d 435, 436 [2003]). Here, based on the father's priorrepresentation that he received no government benefits, and on the evidence that he beganreceiving $2,745 per month in benefits immediately after his support obligation was set at only$100 per month, the Family Court properly granted the mother's petition for an upwardmodification and denied the father's cross petition for a downward modification.
Contrary to the father's contention, the Family Court correctly declined to credit socialsecurity disability benefits paid directly to the child against his child support obligation (seeMatter of Graby v Graby, 87 NY2d 605, 607 [1996]; Matter of Jones v Smith, 59 AD3d 546, 547 [2009]). Florio, J.P.,Belen, Roman and Sgroi, JJ., concur.