Supreme Court, Appellate Division, Second Department, New York.Dec 31, 2014
997 N.Y.S.2d 642 (N.Y. App. Div. 2014)
997 N.Y.S.2d 642123 A.D.3d 11192014 N.Y. Slip Op. 9126


In the Matter of Linda ANDRZEJCZYK, respondent, v. Michael KOTOWSKI, appellant.

Teresa K. Szymanik, Brooklyn, N.Y., for appellant.

Teresa K. Szymanik, Brooklyn, N.Y., for appellant.

Opinion Appeal from an order of the Family Court, Suffolk County (Bernard Cheng, J.), dated February 24, 2014. The order denied the father's objections to a prior order (Aletha Fields, S.M.) which, after a hearing, set his basic child support obligation at $2,900 per month.

ORDERED that the order dated February 24, 2014, is affirmed, without costs or disbursements.

Deference should be given to the credibility determination of the Support Magistrate, who is in the best position to assess the credibility of the witnesses (see Matter of Tsarova v. Tsarov, 59 A.D.3d 632, 875 N.Y.S.2d 84 ; Matter of Musarra v. Musarra, 28 A.D.3d 668, 669, 814 N.Y.S.2d 657 ). Here, the record supports the Support Magistrate's assessment of the parties' credibility. In light of the father's evasiveness concerning his income and earning ability, the Family Court properly determined that the Support Magistrate had insufficient information to determine the father's gross income (see Matter of Denham v. Kaplan, 16 A.D.3d 685, 793 N.Y.S.2d 58 ). The Family Court properly denied the father's objection to the Support Magistrate's determination to base his support obligation only on the children's needs, which was based on testimony elicited at the hearing (see Family Ct. Act § 413[1][k] ; Matter of Thompson v. Coleman, 114 A.D.3d 802, 979 N.Y.S.2d 848 ; Matter of Feng Lucy Luo v. Yang, 89 A.D.3d 946, 946–947, 933 N.Y.S.2d 80 ; Matter of Tsarova v. Tsarov, 59 A.D.3d at 633, 875 N.Y.S.2d 84 ). To the extent the father contends that the Support Magistrate failed to divide the child support between the mother and the father (see Family Ct. Act § 413[1][a] ), we find such contention to be without merit.