Remsen v. Remsen

198 A.D.3d 658

156 N.Y.S.3d 44

In the Matter of Hilary REMSEN, appellant,

v.Jay REMSEN, respondent.

2020–00554

Docket No. F–10080–19

Supreme Court, Appellate Division, Second Department, New York.

Submitted—September 10, 2021

October 6, 2021

New York Legal Assistance Group, New York, N.Y. (Beth E. Goldman and Rachel Lieb of counsel), for appellant.

Jay Remsen, White Plains, NY, respondent pro se.

CHERYL E. CHAMBERS, J.P., FRANCESCA E. CONNOLLY, JOSEPH A. ZAYAS, DEBORAH A. DOWLING, JJ.

DECISION & ORDER

In a proceeding pursuant to Family Court Act article 4, the mother appeals from an order of the Family Court, Westchester County (Mary Anne Scattaretico–Naber, J.), dated December 16, 2019. The order denied the mother's objections to an order of the same court (Michele Reed Bowman, S.M.) dated August 29, 2019, which, after a hearing, inter alia, imputed to her annual income in the sum of $52,148 and directed the father to pay child support in the sum of only $848 biweekly through April 16, 2019, and only $577 biweekly thereafter, and spousal support in the sum of only $291.59 biweekly.

ORDERED that the order dated December 16, 2019, is modified, on the facts and in the exercise of discretion, by deleting the provisions thereof denying the mother's objections to so much of the order dated August 29, 2019, as imputed to her annual income in the sum of $5,000 and directed the father to pay child support in the sum of $848 biweekly through April 16, 2019, and $577 biweekly thereafter, and spousal support in the sum of $291.59 biweekly, and substituting therefor a provision granting those objections; as so modified, the order dated December 16, 2019, is affirmed, without costs or disbursements, the order dated August 29, 2019, is modified accordingly, and the matter is remitted to the Family Court, Westchester County, for a new determination of the father's child support and spousal support obligations in accordance herewith.

The parties were married in 1996 and have two children, born in 1998 and 2004, respectively. The parties separated in 2015, at which time the father began making voluntary biweekly support payments to the mother. In January 2019, the mother commenced this proceeding to determine the father's child support and spousal support obligations. After a hearing, in an order dated August 29, 2019, the Support Magistrate imputed annual income to the mother in the sum of $52,148, and directed the father to pay child support in the sum of $848 biweekly through April 16, 2019, and $577 biweekly for one child thereafter, and to pay spousal support in the sum of $291.59 biweekly. The mother filed objections to the Support Magistrate's order, contending, among other things, that the Support Magistrate erred in imputing income to her. In an order dated December 16, 2019, the Family Court denied the mother's objections. The mother appeals.

A party's income for the purposes of calculating child support or spousal support obligations pursuant to article 4 of the Family Court Act is determined pursuant to the Child Support Standards Act (hereinafter CSSA) (see Family Ct Act § 412[2][c] ). In determining a party's income under the CSSA, the court must begin with the party's "gross (total) income as should have been or should be reported in the most recent federal income tax return" (id. § 413[1][b][5][i]; see Matter of Dailey v. Govan, 136 A.D.3d 1029, 1031, 26 N.Y.S.3d 173 ). However, "[a] court need not rely upon a party's own account of his [or her] finances, but may impute income based on the party's past income or demonstrated future potential earnings" ( Marino v. Marino, 183 A.D.3d 813, 817, 123 N.Y.S.3d 638 [internal quotation marks omitted]; see Pilkington v. Pilkington, 185 A.D.3d 844, 846, 127 N.Y.S.3d 523 ). The Support Magistrate has considerable discretion in determining whether to impute income, and that determination is entitled to deference on appeal (see Sufia v. Khalique, 189 A.D.3d 1499, 1501, 138 N.Y.S.3d 116 ; Matter of Vela v. Land–Wheatley, 165 A.D.3d 807, 85 N.Y.S.3d 503 ). Nevertheless, " ‘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’ " ( Marino v. Marino, 183 A.D.3d at 818, 123 N.Y.S.3d 638, quoting Matter of Shvetsova v. Paderno, 84 A.D.3d 1095, 1096, 923 N.Y.S.2d 202 [internal quotation marks omitted]; see Pilkington v. Pilkington, 185 A.D.3d at 846, 127 N.Y.S.3d 523 ; Muldowney–Walsh v. Desroches, 167 A.D.3d 1022, 1024, 91 N.Y.S.3d 167 ).

The Support Magistrate providently exercised its discretion in determining to impute annual income to the mother based upon her ability to work full time for minimum wage (see Matter of Drake v. Drake, 185 A.D.3d 1382, 1384, 127 N.Y.S.3d 661 ; Matter of Rohme v. Burns, 92 A.D.3d 946, 947, 939 N.Y.S.2d 532 ). The record established that, although the mother had worked only part time during the course of the parties’ marriage, the mother had a college degree. The mother offered no evidence to support her conclusory assertions that she was unable to work full time because she was needed to care for her elderly parents and the parties’ younger child, and because of undisclosed health limitations.

The Support Magistrate providently exercised its discretion in determining to impute income to the mother for monthly housing costs paid by her brother-in-law. In imputing income to a party for the purpose of calculating support obligations under the CSSA, a court may consider, inter alia, money received from relatives or friends (see Matter of Drake v. Drake, 185 A.D.3d at 1383, 127 N.Y.S.3d 661 ; Pilkington v. Pilkington, 185 A.D.3d at 846, 127 N.Y.S.3d 523 ; Matter of Weissbach v. Weissbach, 169 A.D.3d 702, 703, 95 N.Y.S.3d 85 ; Miller v. Miller, 18 A.D.3d 629, 631, 796 N.Y.S.2d 97 ). Although such contributions may properly be excluded where the obligor party refuses to provide support during the pendency of the proceedings (see Isaacs v. Isaacs, 246 A.D.2d 428, 667 N.Y.S.2d 740 ), here, the father had consistently made voluntary support payments to the mother since the parties’ separation in 2015.

Contrary to the mother's contention, the Support Magistrate did not err in failing to impute income to the father on the ground that he lived in an uncle's home with no obligation to pay rent. The evidence demonstrated that the father was living in his uncle's home in exchange for having assisted the uncle with refinancing the home and acted as a cosigner for the new mortgage loan without taking an interest in the real property.

The Support Magistrate, however, improvidently exercised its discretion in imputing to the mother additional annual income in the amount of $5,000 based upon past payments from her parents in that amount. The mother offered unrebutted testimony that these payments were made in exchange for the mother's assistance in managing a certain rental property owned by her parents, and that the property had since been sold. Accordingly, the Family Court should have granted the mother's objection to so much of the Support Magistrate's order as imputed to the mother additional annual income in the amount of $5,000 based upon past payments from her parents in that amount.

The Support Magistrate properly calculated the father's income from employment based upon his most recent tax return (see Family Ct Act § 413[1][b][5][i] ). While the Support Magistrate had the discretion to consider the father's recent...