Calabrese v. Johnston

Jul 7, 2000
Versions:274 A.D.2d 971
710 N.Y.S.2d 227
2000 N.Y. App. Div. LEXIS 7687

—Order unanimously reversed on the law without costs, objections granted in part, order of Hearing Examiner vacated and matter remitted to Ontario County Family Court for further proceedings on the petition. Memorandum: Family Court erred in denying objections of respondent, a self-employed businessman, to an order of the Hearing Examiner that determined his income to be $57,367 for the purpose of calculating his child support obligation. The Hearing Examiner failed to set forth the basis for her determination of respondent’s income, i.e, whether business expenses were considered or income was imputed to respondent, and the record does not otherwise reflect the basis for the Hearing Examiner’s determination of respondent’s income. The court nevertheless denied respondent’s objections to the Hearing Examiner’s order, and determined that depreciation, mortgage interest payments and maintenance and repair expenses could not be deducted from respondent’s income in calculating respondent’s child support obligation. Depreciation is not an out-of-pocket expense, and thus the court properly determined that depreciation was not deductible (see, Matter of Barber v Cahill, 240 AD2d 887, 888-889). Mortgage interest payments and maintenance and repair expenses are deductible business expenses, however, and there is no evidence that respondent did not make those payments or incur those expenses. Thus, the court erred in determining that those payments and expenses could not be deducted from respondent’s income (see, Matter of Barber v Cahill, supra, at 889). Based on the *972absence of findings of fact by either the Hearing Examiner or the court, we are unable to review the propriety of the Hearing Examiner’s determination of respondent’s income. We therefore reverse the order, grant the objections in part, vacate the order of the Hearing Examiner and remit the matter to Ontario County Family Court for further proceedings on the petition. (Appeal from Order of Ontario County Family Court, Henry, Jr., J. — Support.) Present — Pigott, Jr., P. J., Pine, Wisner, Scudder and Lawton, JJ.