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Hurd v. Hurd

Appellate Division of the Supreme Court of New York, Fourth Department
Mar 21, 2003
303 A.D.2d 928 (N.Y. App. Div. 2003)

Summary

ruling that child support can be ordered against an SSI recipient if the hearing examiner concludes that the recipient has the capacity to generate additional income

Summary of this case from Burns v. Edwards

Opinion

CAF 02-00196

March 21, 2003.

Appeal from an order of Family Court, Cattaraugus County (Nenno, J.), entered November 1, 2001, which denied petitioner's objections to the order of the Hearing Examiner.

SOUTHERN TIER LEGAL SERVICES, OLEAN (JEFFREY M. REED OF COUNSEL), FOR PETITIONER-APPELLANT.

STEPHEN D. MILLER, OLEAN, FOR RESPONDENT-RESPONDENT.

PRESENT: PIGOTT, JR., P.J., PINE, HURLBUTT, GORSKI, AND LAWTON, JJ.


MEMORANDUM AND ORDER

It is hereby ORDERED that the order so appealed from be and the same hereby is unanimously affirmed without costs.

Memorandum:

Petitioner, who suffers from hemophilia and hepatitis C and receives Supplemental Security Income (SSI) benefits, contends that the Hearing Examiner erred in imputing income to him in calculating his child support obligation and that Family Court erred in denying his objections to the Hearing Examiner's order. We reject that contention. A Hearing Examiner is afforded considerable discretion in determining whether to impute income to a parent (see Family Ct Act § 413 [b] [5]), and that determination may properly be based upon a parent's prior employment experience (see Matter of Berg v. O'Leary, 193 A.D.2d 732, 733). Here, petitioner himself testified that his SSI benefits were discontinued when he was employed, and the Hearing Examiner was entitled to impute income to petitioner based upon his testimony and other evidence concerning his prior earnings as a union flagman between the years 1997 and 1999. Although petitioner contends that his diagnosis of hepatitis C in the year 2001 limits his ability to work, he submitted no evidence to support that contention other than his own conclusory testimony to that effect. Indeed, the record contains a letter from his treating physician dated August 27, 2001, stating that, although physical labor may be difficult for petitioner, there is "no direct contraindication for employment" based on his medical conditions. In fact, the physician suggests therein that vocational retraining for nonstrenuous "labor employment" would be appropriate.

Petitioner further contends that the Hearing Examiner made a factual error in imputing his earnings. We perceive no reason to disturb the findings of fact of the Hearing Examiner, who was in the best position to hear and evaluate the evidence, including the credibility of the witnesses (see id. at 733-734; Quinn v. Quinn, 145 A.D.2d 754, 756). The record before us establishes that at one point in the year 1997 petitioner earned $16.39 per hour while employed through the union for Union Concrete and Construction Co. and that he earned $3,270.65 in a four-week period during the same year while working for STC Energy, Inc. The record further establishes that in the year 2000 he earned $636 per week while employed through the union for MCS Remedial Services, Inc. The Hearing Examiner properly used that evidence to impute an estimated income for each of those three periods of employment and averaged those three amounts to determine an amount of $55.19 per week according to the Child Support Standards Act (Family Ct Act § 413). The Hearing Examiner thus properly concluded that the current child support obligation of petitioner of $50 per week was "not out of line with his earning potential."


Summaries of

Hurd v. Hurd

Appellate Division of the Supreme Court of New York, Fourth Department
Mar 21, 2003
303 A.D.2d 928 (N.Y. App. Div. 2003)

ruling that child support can be ordered against an SSI recipient if the hearing examiner concludes that the recipient has the capacity to generate additional income

Summary of this case from Burns v. Edwards

upholding imputation of income to SSI recipient where doctor's report and recipient's own testimony made clear that the recipient's medical condition did not foreclose non-strenuous employment

Summary of this case from Commonwealth, Cabinet for Health & Family Services v. Ivy
Case details for

Hurd v. Hurd

Case Details

Full title:MATTER OF RANDY HURD, PETITIONER-APPELLANT, v. LAURA HURD…

Court:Appellate Division of the Supreme Court of New York, Fourth Department

Date published: Mar 21, 2003

Citations

303 A.D.2d 928 (N.Y. App. Div. 2003)
757 N.Y.S.2d 170

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