Summary
In Thomas v. DeFalco, 270 AD2d 277, 703 N.Y.S.2d 530 (2d Dept. 2000), the parents' stipulation of settlement provided that the mother would have custody of the parties' two daughters and the father would have custody of their son.
Summary of this case from Anonymous v. AnonymousOpinion
Submitted January 21, 2000
March 9, 2000
In a support proceeding pursuant to Family Court Act article 4, the father appeals from an order of the Family Court, Suffolk County (Trainor, J.), dated September 10, 1998, which denied his objections to an order of the same court (Buse, H.E.), dated June 22, 1998, granting the mother's petition for an upward modification of child support.
Kenneth J. Weinstein, Garden City, N.Y. (Paula Schwartz Frome of counsel), for appellant.
Lewis A. Silverman, Huntington, N.Y., for respondent.
CORNELIUS J. O'BRIEN, J.P., DANIEL W. JOY, ANITA R. FLORIO, HOWARD MILLER, JJ.
DECISION ORDER
ORDERED that the order is affirmed, with costs.
The stipulation of settlement between the parties provided that the mother would have custody of the parties' two daughters and the father would have custody of the parties' son. Approximately six years later, custody of the parties' son was transferred to the mother, and the mother filed a petition for an upward modification of child support.
The Hearing Examiner properly granted the mother's petition for an upward modification of child support (see, Merl v. Merl, 67 N.Y.2d 359, 362 ; Matter of Brescia v. Fitts, 56 N.Y.2d 132, 138 ; Matter of Boden v. Boden, 42 N.Y.2d 210, 213 ). Contrary to the appellant's contention, the Hearing Examiner properly based her calculations on the Child Support Standards Act (see, Family Ct Act § 413) (hereinafter CSSA). Application of the CSSA to calculate child support is mandatory in determining modification petitions (see,Matter of Alice C. v. Bernard G. C., 193 A.D.2d 97 ; Matter of Howard v. Howard, 186 A.D.2d 132 ; Matter of Rathbun v. Winchell, 183 A.D.2d 948 ; Family Ct Act § 413[b][5]).
The Hearing Examiner properly found that the appellant's income was greater than that to which he testified to during the hearing (see, Matter of Mobley-Jennings v. Dare, 226 A.D.2d 730 ; Perretta v. Perretta, 203 A.D.2d 668 ; Matter of Gallager v. Flaherty, 220 A.D.2d 867 ; Jose R.D. v. Elizabeth R.D., 197 A.D.2d 457;Matter of Ladd v. Suffolk County Dept. of Social Servs., 199 A.D.2d 393, 394 ). A court is not bound by a party's account of his or her own finances, and where a party's account is not believable, the court is justified in finding a true or potential income higher than that claimed (see, Mobley-Jennings v. Dare, supra; Matter of Vetrano v. Calvey, 102 A.D.2d 932, 933 ; Felton v. Felton, 175 A.D.2d 794 ; Rosenberg v. Rosenberg, 155 A.D.2d 428 ).
O'BRIEN, J.P., JOY, FLORIO, and H. MILLER, JJ., concur.