TODD v. GAIL (2007)

 Family Court properly denied the objections of petitioner to the order of the Support Magistrate dismissing his petition seeking a downward modification of his child support obligation and granting that part of respondent's cross petition seeking judgment for child support arrears.   The parties' Separation/Opting Out Agreement (Agreement), which was incorporated but not merged into the divorce judgment, establishes the amount of petitioner's child support payments and provides that “[t]here shall be no downward modification of the child support payments set forth in this Agreement so long as [petitioner's] income during the particular year in question is One Hundred Forty Thousand Dollars ($140,000.00) or more.”   The Support Magistrate properly concluded that petitioner did not meet his burden of establishing that his income fell below $140,000 during the years following his prior petition seeking a downward modification of his child support obligation.   The Support Magistrate was not bound by the account provided by petitioner of his own finances (see Matter of Dukes v. White, 295 A.D.2d 899, 900, 743 N.Y.S.2d 780;  Mellen v. Mellen, 260 A.D.2d 609, 688 N.Y.S.2d 674).   Further, contrary to the contention of petitioner, the Support Magistrate properly utilized the definition of “income” in the Child Support Standards Act (Family Ct. Act § 413[1][b][5] ), absent a more restrictive definition set forth in the Agreement (cf. Matter of Kirdahy v. Scalia, 301 A.D.2d 525, 526, 753 N.Y.S.2d 524).   The Support Magistrate was therefore entitled to impute income to petitioner from sources other than his business, including non-income producing assets (see § 413[1][b][5][iv][A];  see also Matter of Freedman v. Horike, 26 A.D.3d 680, 682, 809 N.Y.S.2d 649), as well as substantial gifts provided to petitioner by his parents (see § 413[1][b] [5] [iv][D];  Matter of Abellard v. Aime, 18 A.D.3d 653, 795 N.Y.S.2d 652;  Mellen, 260 A.D.2d at 610, 688 N.Y.S.2d 674).   The challenge by petitioner to that part of the Support Magistrate's order granting in part respondent's cross petition, raised for the first time in his reply brief, is not properly before us (see Wirth v. ELO, Inc., 21 A.D.3d 1346, 1348, 801 N.Y.S.2d 853).   We have considered petitioner's remaining contentions and conclude that none requires modification or reversal of the order.

It is hereby ORDERED that the order so appealed from be and the same hereby is unanimously affirmed without costs.

MEMORANDUM: