Summary
In Winnert-Marzinek v. Winnert, 291 AD2d 921 (4th Dept 2002), the Fourth Department analyzed a somewhat similar circumstance.
Summary of this case from Betters v. BettersOpinion
CA 01-01806
February 1, 2002.
Appeal from so much of an order of Supreme Court, Erie County (O'Donnell, J.), entered February 5, 2001, which, inter alia, reduced defendant's child support obligation.
LAW OFFICES OF CATHARINE M. VENZON, BUFFALO (CATHARINE M. VENZON OF COUNSEL), FOR PLAINTIFF-APPELLANT.
LAW OFFICE OF CARLO M. PERFETTO, BUFFALO (DOREEN E. LETTY OF COUNSEL), FOR DEFENDANT-RESPONDENT.
PRESENT: PINE, J.P., WISNER, HURLBUTT, KEHOE, AND BURNS, JJ.
It is hereby ORDERED that the order so appealed from be and the same hereby is unanimously affirmed without costs.
Memorandum:
Supreme Court properly determined that the change of residence of the parties' child from plaintiff's home to defendant's home constitutes "a change of circumstances warranting a departure from the [parties' stipulation] and requiring application of the [Child Support Standards Act (CSSA)] standards" ( Russell v. Russell, 210 A.D.2d 875, 876; see, Domestic Relations Law § 240, [1-b] [l]) where, as here, the parties' stipulation is silent with respect to the effect of such a change of residence on child support. The parties' stipulation provides for termination of defendant's obligation to pay child support "[a]s the children reach emancipation or age 21". Contrary to plaintiff's contention, a child moving from one parent's home to the other parent's home does not constitute emancipation where, as here, the child is neither self-supporting nor independent of all parental control. The stipulation is "tellingly silent" on the effect of a child's change of residence on child support and thus we conclude that such an occurrence constitutes an unanticipated change of circumstance ( Riseley v. Riseley, 173 A.D.2d 1103, 1104; see, Russell v. Russell, supra, at 876; cf., Rocchio v. Rocchio, 213 A.D.2d 535, 536-537; Tuchrello v. Tuchrello, 204 A.D.2d 1020).
The court did not abuse its discretion in using plaintiff's most recent Federal income tax return in calculating the parties' child support obligations under the CSSA ( see, Domestic Relations Law § 240 [1-b] [b] [5] [i]; Fuchs v. Fuchs, 276 A.D.2d 868, 872). Although "[n]othing in the statute prohibits reliance upon partial information from a tax year not yet completed" ( Matter of Monroe County Dept. of Social Servs. v. Mercado, 241 A.D.2d 948), there is no evidence in the record to support the contention of plaintiff that her medical condition is permanent in nature, resulting in a permanent decrease in earnings.
We further conclude that the court did not abuse its discretion in declining to impute income to defendant and in declining to excuse plaintiff from the basic child support obligation. Courts have "considerable discretion to attribute or impute an annual income to a parent" ( Blaise v. Blaise, 241 A.D.2d 680, 682; see, Domestic Relations Law § 240 [1-b] [b] [5] [iv]; Barnaby v. Barnaby, 259 A.D.2d 870, 872), but "the exercise of that discretion `must have some basis in law and fact'" ( Matter of Cattaraugus County Commr. of Social Servs. v. Bund, 259 A.D.2d 973, 974, quoting Petek v. Petek, 239 A.D.2d 327, 328; see, Martusewicz v Martusewicz, 217 A.D.2d 926, 927, lv denied 88 N.Y.2d 801). Additionally, a court may deviate from the basic child support obligation if it finds that the noncustodial parent's pro rata share is inappropriate or unjust ( see, Domestic Relations Law § 240 [1-b] [f]; Carlson-Subik v. Subik, 257 A.D.2d 859, 861; see also, Martusewicz v. Martusewicz, supra, at 928). Here, however, the record does not support the assertions of plaintiff that defendant was hiding income and assets that he received from his family-owned business or that it would be unjust to impose the basic child support obligation based on defendant's "ample" resources and her "permanent disability".