| Matter of Rohme v Burns |
| 2012 NY Slip Op 01609 [92 AD3d 946] |
| February 28, 2012 |
| Appellate Division, Second Department |
| In the Matter of Alison J. Rohme, Respondent, v James M.Burns, Appellant. |
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Robert J. Del Col, Smithtown, N.Y., for respondent.
In a child support proceeding pursuant to Family Court Act article 4, the father appeals froman order of the Family Court, Suffolk County (Hoffmann, J.), dated April 12, 2011, which, uponsupplemental findings of fact dated March 15, 2011 (Raimondi, S.M.), made after remittitur fromthis Court (see Matter of Rohme vBurns, 79 AD3d 756, 757 [2010]), denied his objections to an order of the same court(Raimondi, S.M.), dated January 13, 2010, imputing to him an income of $100,000 per year andfinding him responsible for 60% of the subject child's support, unreimbursed medical expenses,and private school tuition.
Ordered that the order dated April 12, 2011, is affirmed, without costs or disbursements.
The parties have one child together. On August 11, 2009, the mother filed a petition seeking,inter alia, child support. At a hearing, the mother testified that she is an attorney who earned$56,895 in 2008, primarily from real estate closings. The father testified that he had a degree inelectrical engineering from Princeton University, and an MBA from New York UniversityBusiness School. The father owns an investment company which "held the rights to a regressionanalysis software for Japanese derivatives securities." The father testified that he made only$26,000 in 2009 as a real estate broker.
In an order dated March 9, 2010, the Family Court denied the father's objections to an orderdated January 13, 2010, issued by a support magistrate, which imputed to the father income of$100,000 per year and found him responsible for 60% of the subject child's support,unreimbursed medical expenses, and private school tuition. The father appealed to this Court. Ina decision and order dated December 7, 2010, this Court reversed the order dated March 9, 2010,and remitted the matter to the Family Court, Suffolk County, "for a new determination of thefather'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, andthe resultant calculations pursuant to Family Court Act § 413 (1) (c)" (Matter of Rohme v Burns, 79 AD3d756, 756-757 [2010]).[*2]
Upon remittitur, the Support Magistrate set forthsupplemental findings of fact in a report which, inter alia, imputed $100,000 of income to thefather based upon certain expenses and found him responsible for 60% of the subject child'ssupport, unreimbursed medical expenses, and private school tuition. In an order dated April, 12,2011, upon the supplemental findings of fact, the Family Court denied the father's objections tothe order dated January 13, 2010. The father appeals, and we affirm.
A court need not rely upon a party's own account of his or her finances, but may imputeincome based upon the party's past income or demonstrated future potential earnings (seeBrown v Brown, 239 AD2d 535 [1997]). The court may impute income to a party based onhis or her employment history, future earning capacity, educational background, or moneyreceived from friends and relatives (seeMatter of LoCasto v Chiofolo, 89 AD3d 847, 848 [2011]; Matter of Collins vCollins, 241 AD2d 725, 727 [1997]). A Support Magistrate may properly impute income incalculating a support obligation where he or she finds that a party's account of his or her financesis not credible or is suspect (see Matterof Sena v Sena, 65 AD3d 1244, 1244-1245 [2009]; Matter of Barnett v Ruotolo, 49 AD3d 640 [2008]).
Pursuant to Family Court Act § 413 (1) (b) (5) (iv), the Family Court is entitled toimpute income to a parent based upon various factors, including: "non-income producing assets,""automobiles or other perquisites that are provided as part of compensation for employment,""fringe benefits provided as part of compensation for employment," and "money, goods, orservices provided by relatives and friends" (Family Ct Act § 413 [1] [b] [5] [iv]). Therecord supports the Support Magistrate's determination that the father's testimony about hisincome was vague and contradictory. Moreover, the Family Court properly determined that thefather has access to, and receives, financial support from his family. Considering, among otherthings, the father's educational background, his lack of credibility, his monthly expenses, and theresources available to him, the Family Court providently exercised its discretion in imputingincome to the father in the sum of $100,000 per year for the purpose of calculating his childsupport and child care obligations (see Matter of Sena v Sena, 65 AD3d at 1245; Matter of Solis v Marmolejos, 50AD3d 691, 692 [2008]).
Based upon, inter alia, the father's imputed income and the mother's established income, theFamily Court properly calculated that the father was responsible for 60% of the subject child'ssupport, unreimbursed medical expenses, and private school tuition (see Family Ct Act§ 413 [1] [c]). Rivera, J.P., Angiolillo, Leventhal and Cohen, JJ., concur.