Opinion
2017-00291, Docket No. F-4897-15.
11-22-2017
In the Matter of Tasha BAYON, Respondent, v. Matthew CASTON, Appellant.
Donald M. Card, Jr., Goshen, NY, for appellant.
Donald M. Card, Jr., Goshen, NY, for appellant.
Appeal by the father from an order of the Family Court, Orange County (Victoria B. Campbell, J.), entered December 14, 2016. The order denied the father's objections to an order of support of that court (Barbara O. Afriyie, S.M.) entered October 13, 2016, which, after a hearing, inter alia, directed him to pay child support in the sum of $490 per month.
ORDERED that the order entered December 14, 2016, is affirmed, without costs or disbursements.
The mother and the father are the unmarried parents of one child. In October 2015, the mother filed a petition for child support. On February 17, 2016, the Family Court issued a temporary order of support directing the father to pay child support in the sum of $50 per month. In an order of support entered October 13, 2016, made after a hearing, the Support Magistrate directed the father to pay child support in the sum of $490 per month. The father filed objections to the order of support, and in an order entered December 14, 2016, the court denied the objections. The father appeals, contending that the Support Magistrate improperly issued a needs-based order of support rather than an order of support based on his income or his income-earning ability.
Pursuant to the Family Court Act, when a party has defaulted or if the court has insufficient evidence to determine a party's income, "the court shall order child support based upon the needs or standard of living of the child, whichever is greater" ( Family Ct. Act § 413[1][k] ; see Matter of Toumazatos v. Toumazatos, 125 A.D.3d 870, 871, 1 N.Y.S.3d 838 ; 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 632, 633, 875 N.Y.S.2d 84 ). Here, contrary to the father's contention, the Support Magistrate did not issue the order of support based on the father's default but, rather, properly determined that there was no credible testimony or documentary evidence upon which to rely in order to impute income or determine the father's actual earning capacity based on past earnings (see Matter of Toumazatos v. Toumazatos, 125 A.D.3d at 871, 1 N.Y.S.3d 838 ; Matter of Weiss v. Rosenthal, 122 A.D.3d 932, 933, 998 N.Y.S.2d 391 ). Thus, it was proper for the Support Magistrate to base the support obligation on the child's needs pursuant to Family Court Act § 413(1)(k) (see Matter of Toumazatos v. Toumazatos, 125 A.D.3d at 871, 1 N.Y.S.3d 838 ; Matter of Thompson v. Coleman, 114 A.D.3d 802, 802, 979 N.Y.S.2d 848 ). Accordingly, the Family Court properly denied the father's objection to the Support Magistrate's determination to base his support obligation on the child's needs (see Matter of Andrzejczyk v. Kotowski, 123 A.D.3d 1119, 1119–1120, 997 N.Y.S.2d 642 ; Matter of Tsarova v. Tsarov, 59 A.D.3d at 633, 875 N.Y.S.2d 84 ).
The father's remaining contentions are either not properly before this Court, as they were not raised in his objections to the Support Magistrate's order (see Family Ct. Act § 439[e] ; Matter of Thompson v. Coleman, 114 A.D.3d at 802, 979 N.Y.S.2d 848 ; Matter of Feng Lucy Luo v. Yang, 89 A.D.3d at 947, 933 N.Y.S.2d 80 ), or without merit.
CHAMBERS, J.P., COHEN, BARROS and CHRISTOPHER, JJ., concur.