Matter of D.L.M. v H.S.L.

[*1] Matter of D.L.M. v H.S.L. 2009 NY Slip Op 50464(U) [22 Misc 3d 1136(A)] Decided on March 4, 2009 Family Court, Onondaga County Hanuszczak, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected in part through March 20, 2009; it will not be published in the printed Official Reports.

Decided on March 4, 2009
Family Court, Onondaga County

In the Matter of D.L.M., Petitioner, . H.S.L., Respondent.



F-03358-06/08E & F



Jeffrey DeRoberts, Esq., for petitioner; Lisa M. Fahey, Esq., for respondent.

Michael L. Hanuszczak, J.

On November 25, 2008, the attorney for the petitioner-father filed the "Objections to Order of Hearing Examiner." An Affidavit of Service was filed with the Court, indicating proper service of the Objection upon the attorney for the respondent-mother. On December 10, 2008, the Court received "Reply to Objections" from the attorney for the respondent together with an Affidavit of Service indicating proper service of the rebuttal upon the petitioner's attorney. On February 13, 2009, the Court also received a "Supplement to the Reply on Objections." A transcript was received and the Court reviewed the case file of the support hearing.

The petitioner, Mr. M ("Father") filed the petition on May 14, 2008 seeking to modify an order of support dated August 6, 2006. The 2006 order directed the father to pay the sum of $119 per week to Ms. L. ("Mother") for support of two children, S.M. and A.M. (ages 12 and 18 respectively at the time of the 2006 order). The order also directed the mother to maintain health insurance coverage for the children, and directed the parents to split equally any and all uncovered health care expenses not covered by insurance, including the deductible, dental, orthodontia, and mental health care. In the Findings of Fact, appended to the 2006 support order, the Support Magistrate found that the mother's gross annual income was $203,000, and the father's was $95,000 for child support purposes. The allocation of the education expenses for the children was not addressed at that time.

In his modification petition, the father alleges the following change of circumstances: (1) S.M. no longer resides with the mother and thus she can no longer be called the custodial parent for child support purposes, (2) A.M. also is away in college and no longer resides with the mother. Finally, in the Financial Disclosure Affidavit, the father claims no income on his individual tax return for 2007 because, according to Schedule C of the 2007 return, as sole proprietor of the N.Y.S.D., his business reported a net operating loss.

At the time of the 2006 order, the court found the father earned $95,000 annually as a licensed property and casualty insurance agent at the Y.A. In 2006, he lost that position at the Y.A. and began working for P.T. Due to a change in economic conditions, the father claimed a decline in income to $32,000. Subsequently he left P.T. and became the sole proprietor of the N.Y.S.D. [*2]

The court found that the mother's income also was impacted by a change in economic conditions. Her adjusted income, as a leasing agent at the W.G. in 2007 was $164,000. The mother appeared before the Support Magistrate to answer the petition and entered a denial to the allegations of the petition. She filed a cross petition on June 27, 2008 for enforcement of the parties' judgment of divorce and the order of support.

At the initial appearance on October 1, 2008, both the father and mother appeared before the Support Magistrate with Jeffrey DeRoberts, Esq., and Lisa Fahey, Esq., respectively. The Support Magistrate scheduled a hearing on the matter for Nov. 4, 2008.

The Support Magistrate found that S.M. resided with the father and granted that portion of the petition, finding that he will no longer be required to pay the mother any support for the benefit of S.M. The court recomputed and decreased the father's contribution for mandatory add-ons from 50% to 16%. However, the Support Magistrate did not find that the father did not have any income, and based the support obligation upon his ability to earn.

The Support Magistrate determined that the father's share of the educational expenses for A.M. in 2007-2008 shall be $3060 for the academic year, and $304 for summer school. This calculation was based on the 16% ratio. In addition, the Support Magistrate determined that in spite of the income disparity between the parents; neither party shall pay support to the other. However, both parents must contribute to the uninsured health care and education expenses of the children.

The attorney for the father set forth the following arguments: (1) when the Support Magistrate determined the mother had no obligation to pay support to the father, the court failed to list and/or mention any of the enumerated factors, (2) the court erred in requiring educational expenses to be paid by the father, and (3) finding him to be in willful violation of the order was not appropriate.

When the court found the mother was the non-custodial parent of the child S.M., the court did list specific enumerated factors in determining that support would be "unjust or inappropriate" as specified in Family Court Act, Sec. 413 (1)(f). The Support Magistrate considered a number of factors when it determined that neither party should pay support to the other, including but not limited to the following; (1) the mother purchased a car for Samantha, (2) the mother pays for the car's fuel, (3) the mother pays for the auto insurance, (4) the mother pays S.M.'s cell phone bill, and (5) the mother provides medical and/or dental insurance coverage for S.M. through her employer. In addition, the Support Magistrate considered the income disparity between the parties. Thus, the Support Magistrate did, contrary to the father's allegation, list and consider a number of the enumerated factors to find that the respondent's

pro rata share of the child support obligation was not unjust or inappropriate. Family Court Act Section 413(1)(f).

Underlying the father's objection is his contention that as the mother's income is so much greater than his, she therefore should pay support to him for S.M. He also believes that it is unfair for the Support Magistrate to impute an income of $32,000 per year to him. With respect to the child support obligation, New York State law requires each parent to provide a fair and reasonable amount of support for his or her minor children within financial guidelines set by statute and based upon an analysis of the financial resources of the parents. (Fam. Ct. Act § 413). It is well-settled that child support is determined by the parent's ability to provide for the [*3]child rather than the parent's current economic situation (Crosby v. Hickey, 289 AD2d 1013, quoting Zwick v. Kulhan, 226 AD2d 734) (emphasis added). It is proper for the Court to impute income based upon the parent's earning capacity when there is evidence that the parent is underemployed. (Zwick v. Kulhan, 226 AD2d 734).

The Support Magistrate did not err in imputing income to the father under the circumstances as presented at the hearing. The court accepted the mitigating economic conditions that affect the father's ability to earn the $95,000 annually that formed the basis for the 2006 order. However, the court was not persuaded that the father's new business venture, the N.Y.S.D. is not profitable, and that he therefore lacks the personal income required to contribute to the expenses of the children. It should be noted that the father did not satisfactorily explain the circumstances under which he is able to afford to maintain a condominium in downtown Syracuse and also pay the mortgage on his primary residence. His explanation that he is able to rent the condominium to cover his expenses is neither credible to this Court nor supported by his Financial Affidavit.

In addition to his claim that the N.Y.S.D. has yet to yield a net profit according to the Financial Affidavit, the father also did not provide credible testimony that he has sought gainful employment in a diligent manner. The Support Magistrate found that the father has a Bachelor of Science in Business, is a licensed insurance broker, and has over ten years experience in the insurance industry. A parent may not evade his child support obligation through the voluntary assumption of a lesser paying position. (Crosby v. Hickey, 289 AD2d 1013).

The court found that the father has the ability to earn at least $32,000 per year based upon his prior employment at P.T., his experience and education. The calculation of the order of support was based upon his ability to earn, not what he actually earned. Additionally, this Court finds it noteworthy that the mother contributed to S.M.'s expenses by purchasing an automobile, paying the child's cell phone, gas, and auto insurance expenses. Furthermore, courts have considerable discretion to impute annual income to a parent.

The Support Magistrate therefore did not err in using the $32,000 figure to compute child support as that figure is characterized as being the CSSA adjusted income for the Father and, therefore, already reduced by all allowable income deductions.

It is well settled that a court may not direct a parent to pay support for a child's costs to attend college past their 21st birthday, unless there was an agreement or "intent" to provide. (Shonour v. Johnson, 27 AD3d 1059). The father objects to contributing toward A.M.'s college tuition, claiming those expenses were never agreed upon in the parties' divorce decree and he cannot afford such expenses. However, in the instant case, there was an agreement to provide for the education expenses "at the time the children will be attending college."

The Judgment of Divorce directs that the parties "shall contribute toward payment of the reasonable educational expenses of such children . . ." It defines "reasonable education expense" to mean and include tuition, academic fees, books, room and board, and transportation. The Court finds no credible evidence demonstrating that the tuition and costs regarding A.M.'s education were "unreasonable." Therefore, since the parties agreed and intended to pay for the educational expenses, the Court properly directed the father to fulfill his support obligation as to A.M.'s college expenses.

The Court finds the Support Magistrate's finding that the father was in willful violation of [*4]the order of support as it relates to the children's educational expenses appropriate.Accordingly, the petitioner's Objection is denied.