IN RE: Benjamin C. KAYE (2024)

MEMORANDUM AND ORDER

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

Memorandum: In this proceeding pursuant to Family Court Act article 4, petitioner father appeals from an order that, inter alia, denied his written objections to the order of the Support Magistrate, which effectively granted in part the father's petition seeking modification of the parties’ judgment of divorce by reducing the father's weekly child support payment but imputed income to the father in determining those payments. We affirm.

As relevant, the father objected to the Support Magistrate's determination to impute income to him because the Veterans Administration determined that he is “totally and permanently disabled” and because there was no evidence that any of his businesses had been successful prior to their sale. We reject the father's contention that Family Court erred in denying that objection.

It is well settled that “ ‘[c]ourts have considerable discretion to ․ impute an annual income to a parent’ ” (Lauzonis v. Lauzonis, 105 A.D.3d 1351, 1351, 964 N.Y.S.2d 796 [4th Dept. 2013]; see Matter of Drake v. Drake, 185 A.D.3d 1382, 1383, 127 N.Y.S.3d 661 [4th Dept. 2020], lv denied 36 N.Y.3d 909, 2021 WL 1181658 [2021]). Furthermore, “[c]hild support is determined by the parents’ ability to provide for their child rather than their current economic situation” (Irene v. Irene [Appeal No. 2], 41 A.D.3d 1179, 1180, 837 N.Y.S.2d 797 [4th Dept. 2007] [internal quotation marks omitted]; see Matter of Bashir v. Brunner, 169 A.D.3d 1382, 1383, 93 N.Y.S.3d 481 [4th Dept. 2019]), and “a court's imputation of income will not be disturbed so long as there is record support for its determination” (Drake, 185 A.D.3d at 1383, 127 N.Y.S.3d 661 [internal quotation marks omitted]).

In determining a party's child support obligation, “[a] court need not rely upon a party's own account of [their] finances, but may impute income based upon the party's past income or demonstrated future potential earnings ․ The court may impute income to a party based on [their] employment history, future earning capacity, educational background, or money received from friends and relatives ․ [In addition, a court] may properly impute income in calculating a support obligation where [it] finds that a party's account of [their] finances is not credible or is suspect” (Matter of Deshotel v. Mandile, 151 A.D.3d 1811, 1811-1812, 59 N.Y.S.3d 209 [4th Dept. 2017] [internal quotation marks omitted]; see Matter of Rohme v. Burns, 92 A.D.3d 946, 947, 939 N.Y.S.2d 532 [2d Dept. 2012]).

Here, the Support Magistrate did not abuse her discretion by imputing income to the father, who had been unemployed since 2017 despite having a bachelor's degree in mechanical engineering. Although the father had been deemed disabled by the Veterans Administration, that determination was based solely upon the father's self-reporting. Indeed, the Veterans Administration records note that “there is no official record of such incurrence or aggravation” of post-traumatic stress disorder in the father's service treatment records. In addition, the evidence before the Support Magistrate revealed that the father had twice applied for social security benefits based upon his disability and had been denied, most recently in 2021. Thus, despite the father's contention that he is unable to work due to a disability, his testimony was not substantiated or corroborated by any medical evidence, and “[t]he Support Magistrate was not obliged to accept the father's unsupported testimony that a medical condition prevented him from working” (Matter of Niagara County Dept. of Social Servs. v. Hueber, 89 A.D.3d 1433, 1434, 932 N.Y.S.2d 644 [4th Dept. 2011], lv denied 18 N.Y.3d 805, 2012 WL 400028 [2012] [internal quotation marks omitted]; see Drake, 185 A.D.3d at 1384, 127 N.Y.S.3d 661).

We have considered the father's remaining contentions and conclude that none warrants reversal or modification of the order.