Reset A A Font size: Print

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

IN RE: Ethel A. RUBLEY, Respondent, v. J. George LONGWORTH, Appellant.

Decided: December 28, 2006

Before:  MERCURE, J.P., CREW III, PETERS, SPAIN and CARPINELLO, JJ. Roemer, Wallens & Mineaux, L.L.P., Albany (Matthew J. Kelly of counsel), for appellant. Gordon, Tepper & DeCoursey, Glenville (Jennifer Powers Rutkey of counsel), for respondent.

Appeal from an order of the Family Court of Saratoga County (Hall, J.), entered October 24, 2005, which granted petitioner's application, in a proceeding pursuant to Family Ct. Act article 4, to modify a prior child support order.

In December 2004, petitioner commenced this proceeding seeking modification of a prior order awarding child support for the parties' two minor children.   There is no dispute that petitioner demonstrated a substantial change in circumstances warranting modification of the order;  specifically, petitioner was recently granted primary physical custody of the children.   Rather, upon his appeal, respondent challenges the denial of his objections to a Support Magistrate's determination imputing approximately $40,000 in annual income to respondent and increasing his weekly child support obligation to $236.66.

 We affirm.   It is well settled that a parent's child support obligation is determined by his or her ability to provide support, rather than the parent's current financial situation (see Matter of Kelly v. Bovee, 9 A.D.3d 641, 641, 779 N.Y.S.2d 656 [2004];  Matter of Collins v. Collins, 241 A.D.2d 725, 727, 659 N.Y.S.2d 955 [1997], lv. dismissed, lv. denied 91 N.Y.2d 829, 666 N.Y.S.2d 560, 689 N.E.2d 530 [1997] ).   Family Court is not bound by a parent's account of his or her own finances, and may impute income “ ‘based upon a prior employment experience, as well as such parent's future earning capacity in light of that party's educational background,’ ” and underreported business activity or payment of personal expenses from business accounts (Matter of Bianchi v. Breakell, 23 A.D.3d 947, 949, 804 N.Y.S.2d 846 [2005], quoting Matter of Susan M. v. Louis N., 206 A.D.2d 612, 613, 614 N.Y.S.2d 584 [1994];  see Askew v. Askew, 268 A.D.2d 635, 636, 700 N.Y.S.2d 594 [2000];  Matter of Klein v. Klein, 251 A.D.2d 733, 734-735, 674 N.Y.S.2d 142 [1998] ).

Here, respondent testified that he has a Bachelor's degree in geology, a Master's degree in geography and is a licensed geologist.   In 1991, when he was earning approximately $55,000 per year, he left his job as head of the storage tank program at Dunn GeoScience and started his own business, which he continues to operate, with the hope that he would make more money.   Although respondent has not searched for other work and continues to live a comfortable lifestyle, he maintains that his annual income is only $15,000.   Given the Support Magistrate's opportunity to assess witness credibility, respondent's inability to explain how he affords his current monthly expenses, petitioner's testimony regarding respondent's history of charging personal expenses to his business and respondent's failure to explain his closely-held corporation's claim of $83,900 worth of deductions on its gross receipts of $99,892, we find no basis to disturb the imputation of $40,000 in income in addition to defendant's reported income of $15,000 (see Moffre v. Moffre, 29 A.D.3d 1149, 1150-1151, 815 N.Y.S.2d 315 [2006];  Matter of Kelly v. Bovee, supra at 642, 779 N.Y.S.2d 656;  Matter of Klein v. Klein, supra at 735, 674 N.Y.S.2d 142).   Finally, in light of respondent's continuous failure to comply with petitioner's discovery requests despite being granted an adjournment, we cannot say that the court erred in refusing to grant a second adjournment and precluding the admission of respondent's attachments to his 2004 corporate tax return and evidence surrounding a decline in his business (see Matter of Spoor v. Spoor, 276 A.D.2d 887, 888, 714 N.Y.S.2d 358 [2000];  cf. Matter of Skrandel v. Haese, 2 A.D.3d 1188, 1189-1190, 769 N.Y.S.2d 645 [2003] ).

ORDERED that the order is affirmed, without costs.



Copied to clipboard