Matter of Eugene S. v Nicole L.

[*1] Matter of Eugene S. v Nicole L. 2018 NY Slip Op 51988(U) Decided on December 12, 2018 Family Court, Kings County O'Shea, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 December 12, 2018
Family Court, Kings County

In the Matter of Support Proceeding Eugene S., Petitioner,

against

Nicole L., Respondent.



204328



Adetojunbo Oseni, Esq., appeared Petitioner Father, 26 Court St. Suite 1309, Brooklyn, NY 11242. Telephone No. (718) 246-7200.

Respondent Mother appeared pro se.
Ann E. O'Shea, J.

NOTICE: YOUR WILLFUL FAILURE TO OBEY THIS ORDER MAY, AFTER A COURT HEARING, RESULT IN YOUR COMMITMENT TO JAIL, FOR A TERM NOT TO EXCEED SIX MONTHS, FOR CONTEMPT OF COURT.

PURSUANT TO '1113 OF THE FAMILY COURT ACT, AN APPEAL MUST BE TAKEN WITHIN 30 DAYS OF RECEIPT OF THE ORDER BY APPELLANT IN COURT, 35 DAYS FROM THE MAILING OF THE ORDER TO THE APPELLANT BY THE CLERK OF THE COURT, OR 35 DAYS AFTER SERVICE BY A PARTY OR LAW GUARDIAN UPON THE APPELLANT, WHICHEVER IS EARLIEST.

This matter is before the Court on Petitioner's objection to an order of the Support Magistrate dated October 9, 2018.

Petitioner commenced this action against Respondent on July 13, 2018, by filing a petition seeking to modify an order of support dated September 16, 2013, requiring him to pay $406.05 bi-weekly in support of Dexcee L., born in October 1999, and Daeneis L., born in May 2009, citing as changed circumstances that his income has gone down and he is now on public assistance. On the adjourned date, both parties appeared. Petitioner appeared with counsel; Respondent appeared pro se. As Petitioner was awaiting medical documentation that had been subpoenaed, the case was adjourned. On the final adjourned date, both parties appeared. Petitioner appeared with counsel. After hearing testimony and reviewing the documentation before the Court, the Support Magistrate reserved decision.

On October 9, 2018, the Support Magistrate entered a final order of support. Pursuant to that order, Respondent is required to pay $431 monthly in support of the children. In order to [*2]reach this conclusion, the Support Magistrate imputed income to Petitioner in the amount of $1,797.00 monthly based upon living expenses that are paid by his wife and father.[FN1] Retroactive support was set at $58,723.11. Respondent's share of unreimbursed medical expenses was set at 21%.

On November 14, 2018, Petitioner timely filed an objection to the order entered on October 9, 2018. In his objection, Petitioner contends that the Support Magistrate erred in imputing income to him as he, personally, has no income from any source and presented evidence that he is medically unable to work. Respondent filed a rebuttal that was untimely.[FN2]

Family Court Act [hereinafter cited "FCA"] § 439(a) empowers Support Magistrates "to hear, determine and grant any relief within the powers of the court" in proceedings properly before them. FCA § 439(e) provides that the Support Magistrate's determination "shall include findings of fact and a final order." The parties are permitted by the statute to submit "specific written objections" to the order for review by a Family Court judge.

The Family Court judge's review of objections is a narrow one. It is the Support Magistrate, and not the reviewing judge, who was present at the evidentiary hearing and who was, therefore, uniquely able to evaluate both the evidence and the credibility and demeanor of witnesses prior to making an order (see Maddox v. Doty, 186 AD2d 135 [2d Dept 1992]). Given this, the scope of the Family Court judge's review is confined to an inquiry into whether the Support Magistrate has made the necessary findings of fact and whether, upon review of the record, there is a reasonable basis for the Support Magistrate's order.

Upon review of the record provided to the Court, the Order issued by the Support Magistrate, and the objection filed by Petitioner, this Court grants Petitioner's objection for the reasons set forth below.

FCA § 413 states in pertinent part as follows:

"[T]he parents of a child under the age of twenty-one years are chargeable with the support of such child and, if possessed of sufficient means or able to earn such means, shall be required to pay for child support a fair and reasonable sum as the court may determine" (emphasis added).

In determining whether a parent is possessed of sufficient means or able to earn sufficient means to support his or her child or children, the Court first begins with a consideration of the parent's "gross (total) income as should have been or should be reported in the most recent federal income tax return" (Family Ct Act § 413[1][b][5][I]; see Matter of Dailey v Govan, 136 AD3d 1029, 1031[2d Dept 2016]; Matter of Moran v Grillo, 44 AD3d 859, 860[2d Dept 2007]), and then proceeds to consider, inter alia, other income or compensation voluntarily deferred (see generally Family Ct Act § 413[1][b][5][ii], [iii]). A Support Magistrate need not rely upon a party's account of his or her own finances, but may impute income based upon the party's employment history, future earning capacity, educational background, or "money, goods, or services provided by relatives and friends" (Family Ct Act § 413[1][b][5][iv];[FN3] see O'Brien v O'Brien, 163 AD3d 694 [2d Dept 2018]; Matter of Napoli v Koller, 140 AD.3d 1070, 1071 [2d Dept 2016]; Matter of Funaro v Kudrick, 128 AD3d 695 [2d Dept 2015]; Baumgardner v Baumgardner, 98 AD3d 929, 930-931 [2d Dept 2012]). Although 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]), 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 (O'Brien v O'Brien, 163 AD3d 694 [2d Dept 2018]; Matter of Peddycoart v MacKay, 145 AD3d 1081 [2d Dept 2016]).

Here, Petitioner was employed as an electrician for 15 years prior to securing employment with the MTA in 2013 as a train signal operator. He has not been employed since he fell on the tracks in 2013, a fall he attributes to peripheral neuropathy in his hands and feet. He is also legally blind in his right eye. Because of his medical condition, Petitioner has not sought employment since he left the MTA on April 29, 2013.[FN4]

Petitioner testified that was diagnosed with diabetes in 2009, was hospitalized in 2012 because "his sugar was too high," and formally was diagnosed with peripheral neuropathy in [*3]both hands and feet and behind his lower legs in 2013.[FN5] He sees his treating physician monthly and receives medication. He experiences pins and needles in his hands and a constant burning sensation in his feet. He testified that he cannot stand for long, nor sit very long, nor walk very far, and cannot work in the electrical field anymore because of his hands.

In a letter dated September 14, 2018, Petitioner's treating physician, Dr. Marc Parnes, corroborated Petitioner's description of his disabilities, as follows:

" On 9-14-18, I would found [sic] that he is legally blind in his right eye and has impaired sensation to the hands and feet radiating up to behind his knees. The treatment was diet and medication. He has significant neurological loss of use and function due to his chronic medical conditions [sic] of diabetes mellitus which is preventing him from performing essentially all of his usual and customary daily activities. He has tried to help his tingling and weakness of the hands and feet are progressively getting worse [sic]. However, I can state with a reasonable degree of medical certainty that these injuries are persistent, chronic and permanent and that the objective findings have caused my patient to have severe limitation of use and function of the injured areas. He cannot climb, pull, push, crouch, balance, crawl, bend, reach, or lift. Due to the severe injuries my patient has severe problems even sitting. He can only sit for less than 2-4 hours in an 8 hour day and requires frequent periods of rest where he must lie down. He has sustained severe neurological damage of the peripheral motor nerves from chronic uncontrolled diabetes mellitus type 1 which has caused him to become incapacitated from performing any type of work, even sedentary types of work.He has persistent, significant loss of use and function from his chronic medical conditions of diabetes mellitus, which is preventing him from performing essentially all of his usual and customary activities of daily living. Therefore he has become chronically and totally and permanently disabled from any type of gainful employment including and (sic) type of sedentary work."

Petitioner lives with his wife and two children in a two bedroom apartment, rent free.[FN6] His wife is employed and pays for all of the family expenses, except Petitioner's mobile phone for which his father pays. Petitioner has no income stream and no known assets from which to pay child support. Petitioner applied for, and was denied, social security disability benefits in 2015. The reason for the denial is not known, and this determination is on appeal.[FN7]

As Petitioner has no income, the Support Magistrate "imputed" income to Petitioner based on the expenses listed on his financial disclosure affidavit, as well as the entire value of the rental apartment provided to the family by his father. This was in error. Although the statute clearly permits the imputation of income to a party based on "money, goods, or services provided by relatives and friends" (Family Ct Act § 413[1][b][5][iv]; see O'Brien v O'Brien, 163 AD3d 694 [2d Dept 2018]; Matter of Napoli v Koller, 140 AD3d 1070, 1071 [2d Dept 2016]; Matter of Funaro v Kudrick, 128 AD3d 695 [2d Dept 2015]; Baumgardner v Baumgardner, 98 AD3d 929, 930-931 [2d Dept 2012]), neither Petitioner's father nor his working wife is [*4]"providing" Petitioner with either "money, goods or services" in any traditional sense. The passive benefits that Petitioner receives merely from living in the same household as his working-wife and children, in an apartment provided for them by the paternal grandfather,[FN8] is not "income" to Petitioner within the meaning of the statute.

The threshold inquiry in each child support case is whether the person to be charged with the payment of support is "possessed of the means or able to earn the means" to support their children. There is no evidence before the Court that Petitioner is possessed of the means to support his children. Nor is there any evidence before the Court showing that Petitioner is able to earn the means to support his children. The only evidence before the Court shows, to the contrary, that Petitioner is unable by reason of his medical condition to engage in work to support his children.

The fact that Social Security disability benefits were denied Petitioner is not dispositive of the issue of Petitioner's ability or lack of ability to work. It is well settled that the determination of one administrative agency is not binding on another agency considering the same question under a different statute (see e.g. Bukovinsky v Bukovinsky, 299 AD2d 786, 787-788 [3d Dept 2002]; Matter of Keller v Regan, 212 AD2d 856, 858 [3d Dept 1995][Hearing Officer not obligated to accept findings of SSA]). In each case, each court or agency must decide the matter based on the evidence presented to it. Here, the uncontroverted medical evidence presented by Petitioner - which is more recent than the medical evidence provided to the Social Security administration - clearly establishes that Petitioner is unable to do even sedentary work, as he can "only sit for less than 2-4 hours in an 8 hour day," which is less than the amount of sitting required to qualify as "sedentary work" by the applicable standards (see e.g., Diforte v Berryhill, 2018 US Dist LEXIS 178644 [EDNY Oct. 17, 2018, No. 1:16-CV-5786(FB)][6 hours in an 8 hour day]).[FN9]

Similarly inapposite here is the "statutory minimum" provision found in Family Ct Act § 413 [1] [d]) , which provides for the payment of $25.00 per month in child support in cases in which "the annual amount of the basic child support obligation would reduce the non-custodial parent's income below the poverty income guidelines amount" (see Matter of Paderno v Shvetsova, 126 AD3d 982, 982-983 [2d Dept 2015]). Petitioner has no income to fall below the poverty income guidelines amount. Accordingly, the statutory minimum does not apply in this case.

The Court has broad authority to review the order of the Support Magistrate and to grant a party's objections to the order upon determining that it would impose a hardship on that party [*5](see Matter of Jeffery v Sprague, 103 AD3d 1136, 1137 [4th Dept 2013]). As the Support Magistrate improvidently exercised her discretion to impute to Petitioner income largely based on the passive benefits he receives from living in the same home as his working wife and children - a decision that clearly imposes a hardship on Petitioner - the petition for a downward modification of Petitioner's support obligation is granted, and the Order of Support is vacated.

The Court is to notify petitioner, petitioner's attorney, respondent, respondent's attorney, Support Magistrate Shamas, and SCU of its decision.

E N T E R:

___________________________________

ANN ELIZABETH O'SHEA, A.J.S.C. Footnotes

Footnote 1: The Support Magistrate found as follows: "Petitioner resides in a two-bedroom apartment. The apartment is located in a six-unit building owned by his father. He stated the rental value of the apartment is $1,100.00 monthly. He resides with his wife and their two children . . .[Petitioner] stated he receives health insurance coverage through his wife's employer. He receives food stamps of $128.00 monthly for himself, his wife and their two children. Petitioner presented an Income and Expense Statement which showed monthly living expenses of: $35.00 for gas; $112.00 for phone/TV/internet: $100.00 for electricity; $128.00 for food; $40.00 for clothing; $120.00 for health insurance; and $112.00 for public transportation. Petitioner stated he has a mobile telephone. His father or his wife pays for the service of $50.00 monthly. He indicated his wife pays for the other household expenses. Thus, Petitioner's living expenses total $1,797.00 monthly."

Footnote 2: Respondent's rebuttal was due by 11/27/18, but was not filed until December 3, 2018. In her untimely rebuttal, Respondent does not challenge the evidence presented at trial. Instead Respondent complains about the evidence that Petitioner did not present at trial, such as documents detailing the history of his application for benefits to the Social Security administration, the status of his disability benefits appeal, his applications for public assistance, and his efforts to seek employment. Respondent also complains about the absence of testimony from Petitioner's wife and his physician, the absence of testimony concerning the medications he takes to control his pain, the absence of a cane to assist in ambulation, and the lack of testimony concerning Petitioner's difficulties getting to his second floor walk-up and problems with his daily activities. Respondent expresses suspicions concerning Petitioner's inability to work, but offered no contrary evidence at trial.

Footnote 3:Family Ct Act § 413[1][b][5][iv] reads in pertinent part as follows: "Income" shall mean, but shall not be limited to, the sum of the amounts determined by the application of clauses (I), (ii), (iii), (iv), (v) and (vi) of this subparagraph reduced by the amount determined by the application of clause (vii) of this subparagraph:

...(iv) at the discretion of the court, the court may attribute or impute income from, such other resources as may be available to the parent, including, but not limited to:

... (D) money, goods, or services provided by relatives and friends;..."

Footnote 4: Petitioner did not seek workers compensation benefits.

Footnote 5:Petitioner presented as evidence of his medical condition, his 2012 hospital records, and certified medical records from his treating physician.

Footnote 6: Petitioner's father owns the apartment.

Footnote 7: The appeal was filed on August 23, 2017. A copy of the appellate brief was provided to the Court.

Footnote 8: Petitioner does not know exactly how much his wife earns, estimating that it is $1,100 - $1,200 bi-weekly.

Footnote 9: In general, in order to be considered sufficiently able to do "sedentary work," Petitioner must be able to "lift[] no more than 10 pounds at a time and occasionally lift[] or carry[] articles like docket files, ledgers, and small tools. Although a sedentary job is defined as one which involves sitting, a certain amount of walking and standing is often necessary in carrying out job duties. Jobs are sedentary if walking and standing are required occasionally and other sedentary criteria are met." (20 CFR § 404.15670). "[T]he concept of sedentary work contemplates substantial sitting (Ferraris v Heckler, 728 F2d 582, 587 [2d Cir 1984]; Carroll v Secretary of Health & Human Servs., 705 F2d 638, 643 [2d Cir 1983]).