Kristy Helen T. v. Richard F.G., Jr.
(Two decisions)
(I)
Matter of Kristy Helen T. v Richard F. G.
2005 NY Slip Op 03247
Decided on
Appellate Division, Second Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
Decided on
SUPREME COURT OF THE STATE OF
APPELLATE DIVISION : SECOND JUDICIAL DEPARMENT
THOMAS A. ADAMS, J.P.
DAVID S. RITTER
WILLIAM F. MASTRO
REINALDO E. RIVERA, JJ.
DECISION & ORDER
2004-06392
[*1]In the Matter of Kristy Helen T. (Anonymous), respondent,
v
Richard F. G. (Anonymous), Jr., appellant. (Docket Nos. F-15608, FU 93375)
Bartels & Feureisen, LLP,
of counsel), for appellant.
George E. Reed, Jr.,
In a support proceeding pursuant to Family Court Act article 4, the father appeals from an order of the Family Court, Westchester County (Klein, J.), dated July 7, 2004, which denied his objections to an order of the same court (James, S.M.), dated April 29, 2004, which, after a hearing, inter alia, directed him to pay child support in the sum of $289 per week.
ORDERED that the matter is remitted to the Family Court,
Westchester County, to set forth the factors considered and the reasons for its
determination with respect to the father's adjusted gross income in accordance
herewith, and the appeal is held in abeyance in the interim. The Family Court,
Upon review of the order and findings of fact of the Support Magistrate, it is evident that she imputed income to the father in calculating his basic support obligation pursuant to the Child Support Standards Act. A Support Magistrate is permitted to impute income in calculating a support obligation where it finds that a party's account of his or her finances is not credible (see Peri v Peri, 2 AD3d 425, 427; Lilikakis v Lilikakis, 308 AD2d 435, 436; Gleicher v Gleicher, 303 AD2d 549, 549-550; Rohrs v Rohrs, 297 AD2d 317, 318). However, in exercising the discretion to impute income to a party, a Support Magistrate is required to provide a clear record of the source from which the income is imputed and the reasons for such imputation (see Matter of Wienands v Hedlund, 305 AD2d 692, 693; Rohrs v Rohrs, supra; Matter of Sweedan v Baglio, 269 AD2d 724, [*2]725-726). In the case at bar, the Support Magistrate failed to specify the sources of income imputed and the actual dollar amount assigned to each category. Accordingly, the record is not sufficiently developed to permit appellate review. The matter is remitted to the Support Magistrate to specify the sources of income imputed and the actual dollar amount assigned to each category, and the appeal is held in abeyance pending receipt of the report.
ADAMS, J.P., RITTER, MASTRO and RIVERA, JJ., concur.
ENTER:
James Edward Pelzer
Clerk of the Court
------------------
(II) Same case after remand:
Matter
of Kristy Helen T. v Richard F. G.
2005 NY Slip Op 10141
Decided on
Appellate Division, Second Department
Published by New York State Law Reporting Bureau pursuant to
Judiciary Law § 431.
This opinion is uncorrected and subject to revision before
publication in the Official Reports.
Decided on
SUPREME COURT OF THE STATE OF
APPELLATE DIVISION : SECOND
JUDICIAL DEPARTMENT
THOMAS A. ADAMS, J.P.
DAVID S. RITTER
WILLIAM F. MASTRO
REINALDO E. RIVERA, JJ.
DECISION & ORDER
2004-06392
[*1]In the Matter of Kristy Helen T. (Anonymous),
respondent,
v
Richard F. G. (Anonymous), Jr., appellant.
(Docket No. F-15608-03)
Bartels & Feureisen, LLP,
of counsel), for appellant.
George E. Reed, Jr.,
In a support proceeding pursuant to Family Court Act article
4, the father appeals from an order of the Family Court, Westchester County
(Klein, J.), dated July 7, 2004, which denied his objections to an order of the
same court (James, S.M.), dated April 29, 2004, which, after a hearing, inter alia, directed him to pay child support in the sum of $289
per week. By decision and order of this court dated
ORDERED that the order is modified, on the law, the facts,
and as a matter of discretion, by deleting the provision thereof directing the
father to pay child support in the sum of $289 per week and substituting therefor a provision directing the father to pay child
support in the sum of $230 per week; as so modified, the order is affirmed,
without costs or disbursements.
This court previously determined in this case that the
Family Court failed to specify the sources of income imputed and the actual
dollar amount assigned to each category (see Matter of Kristy Helen T. v
Richard F.G., 17 AD3d 684). On that basis, we remitted the matter to the Family
Court to set forth the factors considered and the reasons for its determination
with respect to the father's adjusted gross income so that this court would
have a proper record for appellate review. Upon remittitur,
the Family Court identified the evidence presented at the hearing with regard
to the sources of income and losses attributable to the father. The Family
Court attributed [*2]$95,509 in total income to the
father. The Family Court found that the father had not established any expenses
or losses. However, upon our review of the record, we find that certain
expenses and/or losses should be offset against the total income attributable
to the father for purposes of computing his child support obligations.
The father received income from four sources: Custom Sounds
Plus, Jimmy Dee Music Production & Party Design, Inc., Fantasy Flash, and
rental property. The father's gross income from Custom Sounds Plus was reported
in his 2002 income tax returns as $59,079. In relation thereto, the father
listed the sum of $26,692 as total business expenses, which included
depreciation expenses in the sum of $6,350. Inasmuch as the depreciation
expenses did "not affect disposable income or otherwise impact on [his] ability
to pay child support" (Haas v Haas, 265 AD2d 887; see Dane v Dane, 260
AD2d 817, 818; Matter of Barber v Cahill, 240 AD2d 887, 889; Matter of Mireille J. v Ernst F.J., 220 AD2d 503, 504), those
depreciation expenses are not allowable for purposes of computing the father's
child support obligation. Thus, the father's income from Custom Sounds Plus,
for purposes of computing his child support obligations, is $38,737.
With regard to the father's income from Jimmy Dee Music
Production & Party Design, Inc., a total of $21,750 of income should be
included in the calculation of the father's child support obligation. Likewise,
the record establishes that the father earned $9,880 from his employment with
Fantasy Flash. Finally, we attribute $0 of rental income to the father for
purposes of his child support obligation because a net loss was sustained on
the father's rental property (see Matter of Knapp v Levy, 245 AD2d 1027).
Based upon the foregoing, in the exercise of our
fact-finding power, we find that the father's total income for the purpose of
calculating child support is $70,367. Utilizing this income and applying the
applicable "Child support percentage" of 17% (see Domestic Relations
Law § 240[1-b][b][3][i]),
the father's weekly child support obligation is $230. Thus, the order is
modified accordingly.
ADAMS, J.P., RITTER, MASTRO and RIVERA, JJ.,
concur.
ENTER:
James Edward Pelzer
Clerk of the Court
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