Matter of Abruzzo v. JacksonMatter of Abruzzo v. Jackson
The mother filed a petition for an order directing the father to pay child support. Following a hearing, the Support Magistrate imputed an annual income of $62,400 to the father and directed him to pay child support in the sum of $173 per week. The Support Magistrate arrived at that annual income by extrapolating the father‘s previous hourly wage, $30 per hour, over a 40-hour work week. The father objected to the Support Magistrate‘s order on the basis that he was currently unemployed, had “never earned $30 per hour on a 40 hour work week basis,” and his income for the current tax year was $18,060. The Family Court denied the father‘s objections.
When determining a parent‘s child support obligation, “[a] court need not rely upon a party‘s own account of his or her finances, but may impute income based upon the party‘s past income or demonstrated future potential earnings” (Matter of Rohme v Burns, 92 AD3d 946, 947 [2012]). The court may take “into account what the parent is ‘capable of earning by honest efforts, given his [or her] education and opportunities‘” (Morille-Hinds v Hinds, 87 AD3d 526, 528 [2011], quoting Matter of Bibicoff v Orfanakis, 48 AD3d 680, 681 [2008]). Courts are afforded considerable discretion in imputing income (see Morille-Hinds, 87 AD3d at 528; Matter of Ambrose v Felice, 45 AD3d 581, 582-583 [2007]), but the calculation of a parent‘s earning potential “must have some basis in law and fact” (Morille-Hinds, 87 AD3d at 528, quoting Gezelter v Shoshani, 283 AD2d 455, 456 [2001]). Here, the record supports the Support Magistrate‘s determination that the father had been intentionally underemployed (see Spencer v Spencer, 298 AD2d 680, 681 [2002]; cf. Matter of Cordero v Olivera, 40 AD3d 852, 852-853 [2007]), and that annual income of $62,400 should be imputed to him. Balkin, J.P., Austin, Sgroi and LaSalle, JJ., concur.