Reset A A Font size: Print

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

IN RE: SALVATORE D., Petitioner–Respondent, v. SHYOU H., Respondent–Appellant.

Decided: October 20, 2011

GONZALEZ, P.J., MAZZARELLI, SWEENY, ABDUS–SALAAM, ROMÁN, JJ. Barton R. Resnicoff, Great Neck, for appellant. Fersch Petitti LLC, New York (Danielle R. Petitti of counsel), for respondent.

Order, Family Court, New York County (Clark V. Richardson, J.), entered on or about July 13, 2010, which denied respondent mother's objections to an order of support, same court (Support Magistrate Ann Marie Loughlin), entered on or about May 19, 2010, directing respondent to, among other things, pay $950 a month for the support of the parties' child, unanimously affirmed, without costs.

 The Support Magistrate properly ordered child support based on the needs of the child, since respondent presented insufficient evidence to determine her gross income (see Family Court Act § 413[1][k];  see Matter of Childress v. Samuel, 27 A.D.3d 295, 296, 811 N.Y.S.2d 372 [2006] ).   Respondent's stated expenses were more than twice the income reflected on her tax return.   The Support Magistrate found incredible respondent's testimony regarding her employment, her living situation and loans from her employer and brother.   There is no basis to disturb those findings (Childress, 27 A.D.3d at 296, 811 N.Y.S.2d 372).

 The Support Magistrate properly declined to consider the factors set forth in Family Court Act § 413(1)(f), including the child's receipt of Social Security disability benefits.   Such factors should be considered only where, unlike here, the court is able to calculate the basic child support obligation pursuant to Family Court Act § 413(1)(c) (see Matter of Graby v. Graby, 87 N.Y.2d 605, 641 N.Y.S.2d 577, 664 N.E.2d 488 [1996] ).

Respondent's testimony, including that she was a well-known esthetician with celebrity clients and 22 years of experience, supports the Support Magistrate's determination that she is able to pay the child support obligation.   The Support Magistrate was not required to rely on respondent's account of her finances (see Matter of Culhane v. Holt, 28 A.D.3d 251, 252, 813 N.Y.S.2d 400 [2006] ).   We have considered respondent's remaining contentions and find them unavailing.