MONROE COUNTY SUPPORT COLLECTION UNIT WILLS v. WILLS

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Supreme Court, Appellate Division, Fourth Department, New York.

Matter of MONROE COUNTY SUPPORT COLLECTION UNIT, on Behalf of Patricia WILLS, Petitioner-Respondent, v. David WILLS, Respondent-Appellant.

Decided: September 30, 2005

PRESENT:  PIGOTT, JR., P.J., GORSKI, MARTOCHE, PINE, AND LAWTON, JJ. Muldoon & Getz, Rochester (Gary Muldoon of Counsel), for Respondent-Appellant. Daniel M. DeLaus, County Attorney, Rochester (Kathleen J. Gray of Counsel), for Petitioner-Respondent.

 Contrary to the contention of respondent, Family Court properly imputed income to him in the amount of $70,000.   Pursuant to Family Court Act § 413(1)(b)(5)(v), “if the court determines that a parent has reduced [his or her] resources or income in order to reduce or avoid [his or her] obligation for child support,” the court may impute income to the parent based upon former resources or prior employment experiences as well as future earning capacity based upon educational background (see Matter of Collins v. Collins, 241 A.D.2d 725, 727, 659 N.Y.S.2d 955, appeal dismissed and lv. denied 91 N.Y.2d 829, 666 N.Y.S.2d 560, 689 N.E.2d 530).   The court “has ‘considerable discretion’ to attribute or impute income to a parent based upon his or her ability to earn sufficient means to pay child support” (Matter of Liebman v. Liebman, 229 A.D.2d 778, 779, 645 N.Y.S.2d 581, quoting Matter of Susan M. v. Louis N., 206 A.D.2d 612, 613, 614 N.Y.S.2d 584;  see Matter of Cattaraugus County Commr. of Social Servs. v. Bund, 259 A.D.2d 973, 687 N.Y.S.2d 512).   In determining a parent's child support obligation, a court need not rely on the accounting of the parent with respect to his or her financial resources and, “where a party's account is not believable, the court is justified in finding a true or potential income higher than that claimed” (Matter of Thomas v. DeFalco, 270 A.D.2d 277, 278, 703 N.Y.S.2d 530).   Income may properly be imputed when there are no reliable records of a parent's actual employment income or evidence of a genuine and substantial effort to secure gainful employment (see Matter of Commissioner of Social Servs. v. Monica, 10 A.D.3d 260, 781 N.Y.S.2d 70).

Here, the court determined the income of respondent based on his pre-1999 income, his education, his experience and his future earning capacity (see id.), and respondent failed to establish his entitlement to a lower income (see Matter of Duguay v. Paoletti, 279 A.D.2d 767, 768, 718 N.Y.S.2d 493).   Respondent failed to submit evidence of “genuine and sustained efforts to secure gainful employment” (Monica, 10 A.D.3d at 260, 781 N.Y.S.2d 70).   Moreover, the record establishes that respondent's credibility was impeached, and thus the court was entitled to discredit the accounting of respondent's financial resources provided by respondent (see Thomas, 270 A.D.2d at 278, 703 N.Y.S.2d 530).

Respondent's further contention that the court erred in taking judicial notice of prior proceedings is not preserved for our review (see generally Ciesinski v. Town of Aurora, 202 A.D.2d 984, 985, 609 N.Y.S.2d 745) and, in any event, is without merit (see Matter of A.R., 309 A.D.2d 1153, 764 N.Y.S.2d 746).

We have reviewed respondent's remaining contentions and conclude that they either are unpreserved for our review or are without merit.

It is hereby ORDERED that the order so appealed from be and the same hereby is unanimously affirmed with costs.

MEMORANDUM: