Matter of R.S. v A.P.

[*1] Matter of R.S. v A.P. 2016 NY Slip Op 51662(U) Decided on November 15, 2016 Family Court, Ontario County Aronson, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on November 15, 2016
Family Court, Ontario County

In the Matter of a Proceeding for Support Under Article 4 of the Family Court Act, R.S., , Petitioner,

against

A.P., Respondent.



F-00239-12/16GFile No.



Appearances: Leanne Lapp, Ontario County Public Defender (Mollie A. Dapolito, Esq., of counsel), for petitioner

A. P., respondent pro se
Stephen D. Aronson, J.

This case holds that in a child support modification proceeding, income should not be imputed to parents of lesser means where one exceptionally good year of earnings is not representative of their long-term earning capacity and where there is no evidence that the parents took lesser paying jobs to avoid their support obligations.

In this family court child support proceeding the modification petition sought to reduce the petitioner's support obligation because he "[j]ust got evicted, income is less now, can't afford $302/wk, under the self-support reserve." A hearing was held on June 30, 2016. The petitioner was represented by Assistant Public Defender Mollie A. Dapolito, Esq., and the respondent represented herself. Findings of Fact were entered on July 28, 2016, and an order modifying support was signed and entered on August 8, 2016. The order requires petitioner to pay $283 per week for the three minor children of the parties (a reduction from the $302 per week previously ordered, when there were four minor children) plus 58% of all uninsured health-related expenses. A provision for a payment of arrears by the petitioner is carried over from the prior order. The petitioner filed objections to the order on September 13, 2016, through his attorney. The respondent filed a response to the objections on September 20, 2016.

Petitioner's objections are: (1) the total of the incomes imputed to the parties ($50,099 for the petitioner and $36,881 for the respondent) is $86, 980 rather than $87, 480 as shown in the findings of fact; and (2) the parties' support obligations should be assessed according to their current financial situations and household incomes (including the income of respondent's husband) rather than on the "self-imposed hardship" standard. Petitioner seeks a reduction to $167.87 per week, based upon imputed annual income of $30,160 (40 hours per week at $14.50 [*2]per hour multiplied by 52 weeks).

Petitioner cites Matter of Allen v. Bowen, 149 AD2d 828 (3d Dept 1989), for the principle that when a party concedes that a child's needs are being met, a petition for downward modification must be considered. Petitioner characterizes respondent as having conceded that the children's needs are met by her own income and her husband's (see letter to court from petitioner's counsel dated July 7, 2016, styled as a closing argument). Petitioner argues that the magistrate failed to consider the financial resources available to the respondent from her husband, citing Matter of Webb v. Rugg, 197 AD2d 777 (3d Dept 1993) (child support should be calculated by considering all financial resources of the parents, not just income), and Domestic Relations Law § 240 (1-b)(b)(5)(iv)(D), which includes money, goods, or services provided by relatives and friends in the definition of "income."

Respondent's rebuttal to the objections provides details of her husband's financial obligations. She denies that the children's needs are met without child support from their father. In a letter to the court dated July 12, 2016 (styled as her rebuttal to petitioner's written closing argument dated July 7), respondent states that their needs are met "including whatever [R. S.] chooses to send that week." She also informed the court in her July 12 letter that the children are no longer eligible for Medicaid insurance due to her marriage to Mr. P.

TESTIMONY

The testimony of the petitioner focused on his employment history doing cabinetry or millwork. He provided his 2014 and 2015 income tax returns and a financial affidavit to the court. The petitioner testified that he currently works 30 to 40 hours per week for $14.50 per hour at Comfort Windows and Doors. He admitted that he was fired from his previous job at Barrington because he missed too many days of work. Prior to that he worked for Kelly Contracting for four or five years. He stated that his base pay there was $15.50 per hour (but his attorney lists it as $15.75 per hour in his objections). He explained that he earned $28 or $30 per hour for "a couple of months" in 2013, when he was doing "rate jobs," meaning construction of schools or banks. He testified that in 2014 he only earned one-half to five-eighths of his 2013 earnings because there was no "rate work" that year. His 2014 income tax return shows income of $187.88 from Barrington and $30,172.95 from Kelly. Petitioner testified that he quit the job at Kelly in approximately March of 2014 because he was uncomfortable with the demolition work in [an undesirable] part of Rochester involving asbestos removal. He testified that his wife has no income, that she receives Food Stamps, that they have no health insurance, and that they are living rent-free at his mother's house. He was evicted from their previous home, a 1972 trailer that he owns, because he was behind on lot rent.

The respondent testified that the parties broke up in July 2010. All four of the children live with the respondent, and she home-schools them. The eldest was to turn 21 a few days after the hearing. The respondent has done home daycare on and off for the past three years and currently earns about $230 per week. It is not a licensed daycare facility. She is also going to school. She said she took a break from providing daycare for several months recently because she had too many other responsibilities. She testified that she had to leave her previous job at Thompson Hospital because she was in an abusive relationship; no further details were given as to what that meant.

She testified that the children are on Medicaid. Her husband is employed and earns $46,607 per year according to his W-2. He pays the rent for their home and child support for his own four children. She mentioned that she agreed to drop $5,000 in arrears owed by the petitioner in a prior proceeding. She testified that she thought the child support order of $302 per week was "steep" and that she had called the petitioner's attorney to ask about lowering the support to $200 per week. During the hearing she renewed this offer, asking petitioner if he would settle for an order of $200 per week. He replied that he would like "to go a little lower."

It is apparent to this court that these parents are surviving above poverty lines but certainly are families with limited means.

ANALYSIS

Petitioner's first objection is well taken; the arithmetic was erroneous in the findings of fact. The sum of the two imputed incomes is $86, 980. Twenty-nine percent of that is $25,224.20. Petitioner's 58 percent share is $14,630.04 per year or $281.35 per week, not $283 per week as ordered. However, for the reasons hereinafter set forth, it is unnecessary to further address this objection.

The petitioner argues in his second objection that the correct amount of income to impute to him is $30,160 (using his current hourly wage of $14.50 times 40 hours per week) and that additional financial resources should be imputed to the respondent due to her husband's earnings. I agree.

Petitioner's recent earnings history, based upon an aural review of the testimony from June 30, 2016, is approximately as follows:

• January 2013 to December 2013: employed at Kelly; some "rate work" at $28-$30/hr; total on income tax return is $50,099• January 2014 to March 2014: employed at Kelly, $15.50/ hr; total on income tax return earned at Kelly is $30,172.95• March 2014 to November 2014: not clear from the record• December 2014 to May 2015: Barrington, $12.50/hr• May 2015 to June 30, 2016 (and presumably to the present): Comfort Windows, $14.50/hr

The petitioner made it clear that the job that generated over $50,000 annually ($28 or $30 per hour for part of the time) was based on "rate jobs" for construction of a school or a bank. He testified that there was no rate work in 2014, so he made $30,172.95 at Kelly that year, only 1/3 to 5/8 of what he had earned in 2013. The undisputed evidence showed that his earnings since 2013 have consistently been between $12.50 and $15.75 per hour.

Court records show that in November 2014 he filed a modification petition seeking to reduce his support obligation. Court records show that his petition seeking a modification was denied on the ground that his reduction in income was self-imposed (see Findings of Fact and Order entered April 9, 2015, and Decision and Order on objections entered January 12, 2015). However, since that decision, more time has passed; and it is clear that the petitioner's earnings of $50,000 in 2013 was the exception to his earning capacity rather than being representative of his earning capacity. Also, although he was fired from a job at Barrington for absenteeism, he [*3]subsequently acquired a new job that pays more money.

At the discretion of the court, imputed income can include (among other sources) "an amount imputed as income based upon the parent's former resources or income, if the court determines that a parent has reduced resources or income in order to reduce or avoid the parent's obligation for child support" (Family Court Act § 413[1][b][5][v]). Reasons for imputing income to a parent in child support cases include but are not limited to a variety of situations: actual income greater than reported in documents submitted to the court (Payne v. Blink, 41 AD3d 321 [1st Dept 2007]; a party's account of his or her finances is not credible or is suspect (Sena v. Sena, 61 AD3d 980 [2d Dept 2009]); a party's financial disclosure affidavit indicated monthly expenses greatly exceeding reported income (Safran v. Nou, 123 AD3d 460 [1st Dept 2014]); where a parent engages in misconduct and is incarcerated (Hueber v. Hueber, 89 AD3d 1433 [4th Dept 2011], lv denied 18 NY3d 805 [2012]); and where expert testimony establishes that figures on income tax returns were unreliable (Irene v. Irene, 41 AD3d 1179 [4th Dept 2007]). These are just a few of the many reasons income can be imputed. It is well settled that courts may properly impute income to parents for child support purposes based on past income or demonstrated earning potential and that a court need not rely upon a party's account of his or her finances. Belkhir v. Amrane-Belkhir, 118 AD3d 1396, 1397 (4th Dept 2014). Furthermore, a court "'is not required to find that a parent deliberately reduced his or her income to avoid a child support obligation before imputing income to that parent.'" Belkhir, supra, citing Irene v. Irene, 41 AD3d 1179, 1180 (4th Dept 2007). Here, however, there was no evidence that either parent reduced resources or income to reduce or avoid the parent's child support obligation.

A support magistrate is afforded considerable discretion in determining whether to impute income to a parent (Matter of Julianska v. Majewski, 78 AD3d 1182, 1183 [2d Dept 2010]), and great deference should be accorded to a support magistrate's credibility determination (Matter of Kiernan v. Martin, 108 AD3d 767, 768 [2d Dept 2013]). However, a determination to impute income will be rejected where the amount imputed was not supported by the record or the imputation was an improvident exercise of discretion (Matter of Kiernan v. Martin at 768). Family Court has the discretion to impute income based upon a parent's employment experience and earning capacity and a parent's failure to seek employment that is commensurate with his or her education, skills or experience (D'Andrea v. Prevost, 128 AD3d 1166, 1167 [3d Dept 2015]). Here, the credible evidence showed that the higher-paid work for banks and schools in 2013 was of short duration; no evidence was adduced that this kind of work was continuously available to the petitioner after 2013. Moreover, although he left jobs subsequently, the evidence showed that his hourly rate has consistently been maintained between $12.50 and $15.75 per hour. Under these circumstances, the support magistrate improvidently exercised discretion in imputing income to the petitioner of $50,099 per year. Here, the petitioner did not voluntarily leave a job that paid him more than $50,000 per year; the work just ceased to be available. Although he admitted he voluntarily left his job at Kelly because of his distaste for the inner-city work environment and asbestos exposure, the job did not pay a significantly higher hourly rate than his current job. He also admitted he was fired from his job at Barrington because he failed to show up for work; but, again, that job actually paid less than the hourly rate at his current job. In light of these facts, it was an improvident exercise of discretion for the support magistrate to impute income to the petitioner based upon what amounted to the temporary availability of work [*4]assignments at Kelly that paid at higher rates.

The next issue is whether the support magistrate also correctly imputed income to the respondent. Her current earnings are $230 per week from providing daycare in her home. The mother's prior earning history, as documented in the course of prior support court proceedings, is as follows:

• $0 as of the support order entered July 31, 2012, in docket F-0239-12/12B.• $36, 881 imputed income as of the magistrate's findings entered October 15, 2014, in docket F-0239-12/14C. She had submitted only a 2013 New York State income tax return showing taxable income of $9,035, including $2,636.40 at F.F. Thompson Hospital.

The support magistrate held the reported income of $9,035 to be inadequate since the mother was working as a phlebotomist at Thompson. The imputed income figure of $36,881 was based on Bureau of Labor Statistics for medical technicians in the Rochester, New York area, showing earnings of $19.20 per hour.

Similarly to the petitioner's situation, the imputing of income to the respondent is based on data from several years ago. The respondent's situation has changed; she is no longer working as a phlebotomist. She is regarded as having left the employment voluntarily, hence, the imputation. Yet she testified that she left the job as a phlebotomist because of sexual harassment at the workplace that was not adequately addressed. In addition, she chose to home-school the children and therefore needed to find work she could do from home. In light of these facts, it was an improvident exercise of discretion for the support magistrate to impute income to the respondent at the level of $36,881.

The final issue is whether the support magistrate adequately took into account all financial resources of the parties in calculating their child support obligations. Family Court Act § 413(1)(f)(1) states that all financial resources of the parents should be considered in determining child support (not just income), and Family Court Act § 413(1)(b)(5)(iv)(D) says that "income" can include "money, goods or services provided by relatives and friends." Numerous cases have dealt with situations where financial assistance has or has not resulted in imputed income, e.g., income should have been imputed to a parent for significant expenses covered by a relative (Ambrose v. Felice, 45 AD3d 581 [2d Dept 2007]); in a case where financial assistance came from a family member while the parent attended college, only the parent's past earnings would be imputed (Summons v. Summons, 48 AD3d 691 [2d Dept 2008]); imputing income based on past earning capacity was improper where parent was out of the work force for an extended period (Walter v. Walter, 38 AD3d 763 [2d Dept 2007]); there must be an evidentiary basis in fact to determine what a parent can actually earn (D'Amico v. D'Amico, 66 AD3d 951 [2d Dept 2009]). In exercising the discretion to impute income, a support magistrate is required to provide a clear record of the source from which the income is imputed and the reasons for the imputation (Wesche v. Wesche, 77 AD3d 921 [2d Dept 2010]).

Here, the respondent's husband pays their rent of $1,200 per month, provides $80 per month to cover the mother's health insurance, and pays $140 per month for her car insurance. Therefore, her weekly resources are $230 in earnings plus imputed resources of $255 per week from her husband (½ of the weekly rent [$200]; weekly cost of her health insurance [$20]; and weekly cost of her car insurance [$35]). This brings her weekly imputed income to $485, which is $25,220 annually.

Petitioner is also receiving monetary support from a family member. He shows a monthly expense of $345 for rent on his financial affidavit but testified that he and his wife are living rent-free at his mother's home after having been evicted from their own trailer for failure to keep up with lot rent. The court will decline to impute any income to the petitioner based upon the small amount of the money that would be attributable to him (1/3 of the monthly rent since he shares the home with his wife and his mother, divided by 4.3 to get a weekly amount) and the fact that his current living arrangement is likely to be a temporary one, until he and his wife can again afford to live in their own quarters.

Upon a review of objections and rebuttal in a child support case, this court may (i) remand one or more issues of fact to the support magistrate, (ii) make his or her own findings of fact and order, with or without holding a new hearing, or (iii) deny the objections (Family Court Act § 439[3]). Deference should be given to the decision of the support magistrate, who is in the best position to assess credibility of the witnesses and evidence proffered (Matter of Manocchio v. Manocchio, 16 AD3d 1126 [4th Dept 2005]). Nevertheless, a family court can properly make its own findings of fact even though they may be contrary to those of the support magistrate (Matter of Hughes v. Wasik, 224 AD2d 982 [4th Dept 1996]). Here, this court elects to make new findings of fact and issue an order without holding a new hearing.

In accord with the Child Support Standards Act, the parties' obligation for support of their three minor children is 29 percent of their combined income after subtraction of FICA and Medicare taxes. The correct amount of income to impute to the petitioner is $30,160 ($14.50 x 40 hours x 52 weeks). The court adopts petitioner's own figure, assuming that allowance has been made for FICA and Medicare taxes. The imputed income for the respondent is $25,220. The total annual imputed parental income is $55,380. Twenty-nine percent of this is $16,060.20. Petitioner's income represents 54 percent of the total, making his share of child support $8,672.51 annually, or $166.78 weekly. He shall also be responsible for 54 percent of any uninsured health-related expenses for the three minor children. These provisions are effective July 17, 2016, and shall commence November 21, 2016, with payments made through the Support Collection Unit.

Order to enter accordingly.

PURSUANT TO SECTION 1113 OF THE FAMILY COURT ACT, AN APPEAL TO THE APPELLATE DEPARTMENT MUST BE TAKEN WITHIN 30 DAYS OF RECEIPT BY THE APPELLANT IN COURT OF THE ORDER OF EVEN DATE WITH THE DATE OF THIS DECISION, 35 DAYS FROM THE MAILING OF SAID ORDER TO THE APPELLANT BY THE CLERK OF THE COURT, OR 30 DAYS AFTER SERVICE OF SAID ORDER UPON THE APPELLANT BY THE RESPONDENT, WHICHEVER IS EARLIEST.

b>Dated: November 15, 2016

ENTER

___________________________________

Hon. Stephen D. Aronson

Acting Family Court Judge