THOMPSON v. THOMPSON (2020)

Order, Supreme Court, New York County (Phyllis Sambuco, Special Referee), entered June 17, 2019, after a trial, which, to the extent appealed from as limited by the briefs, denied defendant's request to impute income to plaintiff in calculating his child support obligation, unanimously reversed, on the facts, without costs, defendant's request granted, and the matter remanded for further proceedings in accordance herewith.

The court improvidently exercised its discretion in calculating plaintiff's child support obligation based on his self-reported gross annual income at the time of trial and declining to impute income to him based on his demonstrated earning potential (see K. v. B., 13 A.D.3d 12, 20, 784 N.Y.S.2d 76 [1st Dept. 2004], appeal dismissed 4 N.Y.3d 776, 792 N.Y.S.2d 895, 825 N.E.2d 1090 [2005];  Matter of Culhane v. Holt, 28 A.D.3d 251, 252, 813 N.Y.S.2d 400 [1st Dept. 2006] ).  Trial evidence established that between the years 2011 and 2016, plaintiff's income ranged from $78,866 to $100,000.  Plaintiff testified that he was terminated from his employment in early 2017, after the instant support proceedings were commenced, and forced to take a lesser paying job because he could not find commensurate work.  However, nothing in the record reasonably explains his inability to secure a similar position.  Moreover, the court accepted plaintiff's testimony as to his gross annual income while making inconsistent findings as to his credibility, and rejected any imputation of income as “speculative,” despite his demonstrated earning potential.