IN RE: ISIDRO FIGUEROA (2015)

Supreme Court, Appellate Division, Fourth Department.

IN RE: ISIDRO FIGUEROA, JR., PETITIONER–APPELLANT, v. ANNETTE FIGUEROA, RESPONDENT–RESPONDENT.

CAF 15–00146

Decided: December 31, 2015

PRESENT: SCUDDER, P.J., SMITH, CENTRA, PERADOTTO, AND CARNI, JJ.

LEGAL ASSISTANCE OF WESTERN NEW YORK, INC., GENEVA (MOLLIE A. DAPOLITO OF COUNSEL), FOR PETITIONER–APPELLANT. CECILY G. MOLAK, LYONS, FOR RESPONDENT–RESPONDENT.

MEMORANDUM AND ORDER

It is hereby ORDERED that the order so appealed from is unanimously reversed on the law without costs and the matter is remitted to Family Court, Wayne County, for a new hearing.

Memorandum: Petitioner father appeals from an order denying his objections to the order of the Support Magistrate, who denied in part his petitions seeking a downward modification of his child support obligation. The Support Magistrate imputed income to the father in determining his child support obligation. “[I]n determining a party's child support obligation, a court need not rely upon the party's own account of his or her finances, but may impute income based upon the party's past income or demonstrated earning potential” (Belkhir v. Amrane–Belkhir, 118 AD3d 1396, 1397 [internal quotation marks omitted]; see Matter of Hurd v. Hurd, 303 A.D.2d 928, 928–929). We agree with the father that, in imputing income to him, the Support Magistrate erred in relying on facts that were not in evidence (see Matter of Mentor v. DeLorme, 17 AD3d 1012, 1012–1013). We therefore reverse the order and remit the matter to Family Court for a new hearing. In light of our determination, we do not consider the father's remaining contentions.

Frances E. Cafarell

Clerk of the Court

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