Matter of Maria N. Sweitzer v Dennis P. Montanino

Matter of Sweitzer v Montanino 2005 NY Slip Op 08989 [23 AD3d 566] November 21, 2005 Appellate Division, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, January 18, 2006

In the Matter of Maria N. Sweitzer, Appellant,
v
Dennis P. Montanino, Respondent.

—[*1]In a child support proceeding pursuant to Family Court Act article 4, the mother appeals from an order of the Family Court, Nassau County (Brennan, J.), dated July 7, 2004, which denied her objection to so much of an order of the same court (Dwyer, S.M.) dated March 12, 2004, as, after a hearing, declined to impute income to the father based on his annual salary prior to the termination of his last employment.

Ordered that the order is affirmed, with costs.

Contrary to the mother's contention, while it may be appropriate to impute income where the father has voluntarily left his employment (see Family Ct Act § 413 [1] [b] [5] [v]; Matter of Barrow v Hammond, 305 AD2d 496, 497 [2003]; Matter of Dodaro v Beyer, 297 AD2d 379, 380 [2002]; Matter of Prill v Mandell, 237 AD2d 445, 446 [1997]; Matter of Beck v Beck, 228 AD2d 672, 673 [1996]), the facts of this case do not warrant this finding (see Matter of Prill v Mandell, supra; Martusewicz v Martusewicz, 217 AD2d 926, 927 [1995]).

The mother's contention that the father did not diligently seek new employment is without merit.

Accordingly, the Family Court properly denied the mother's objections to the order [*2]of the Support Magistrate. Florio, J.P., Goldstein, Fisher and Covello, JJ., concur.