Opinion
2014-01-15
In the Matter of Abigail S. BEST, respondent, v. Newton A. HINDS, appellant.
Cabelly & Calderon, Jamaica, N.Y. (Alan S. Cabelly of counsel), for appellant.
In a child support proceeding pursuant to Family Court Act article 4, the father appeals, as limited by his brief, from so much of an order of the Family Court, Kings County (Beckoff, J.), dated January 25, 2013, as denied his objections to so much of an order of the same court (Fasone, S.M.), dated September 20, 2012, as imputed an annual income to him in the sum of $35,000 for the purpose of calculating his child support obligation, and granted his petition for a downward modification of his child support obligation only to the extent of reducing his obligation to the sum of $738 per month.
ORDERED that the order dated January 25, 2013, is affirmed insofar as appealed from, without costs or disbursements.
The Family Court properly determined that the father has the ability to pay child support in the sum of $738 per month ( seeFamily Ct. Act § 413). “A Support Magistrate is afforded considerable discretion in determining whether to impute income to a parent” ( Matter of Julianska v. Majewski, 78 A.D.3d 1182, 1183, 911 N.Y.S.2d 655), and we accord deference to a support magistrate's credibility determinations ( see Matter of Feng Lucy Luo v. Yang, 89 A.D.3d 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, the Support Magistrate's findings regarding the father's income, which were based on credibility determinations, are supported by the record. Accordingly, they should not be disturbed ( see Matter of Gebaide v. McGoldrick, 74 A.D.3d 966, 967, 901 N.Y.S.2d 857; Matter of Kennedy v. Ventimiglia, 73 A.D.3d 1066, 1067, 899 N.Y.S.2d 899).
The father's contention that the Support Magistrate erred in failing to consider his obligation to support his three custodial children is unpreserved for appellate review, as he failed to raise that issue in the objections before the Family Court ( see Matter of Elia v. Elia, 299 A.D.2d 358, 749 N.Y.S.2d 176; Matter of Stone v. Stone, 236 A.D.2d 615, 615–616, 654 N.Y.S.2d 677). In any event, the Support Magistrate did not improvidently exercise his discretion in declining to consider the father's obligation to support his three custodial children in determining his responsibility to support the noncustodial subject child ( seeFamily Ct. Act § 413[1][f] ). “In determining whether the full amount of support under the standard guideline would be unjust or inappropriate, the court may consider the needs of the children of the noncustodial parent who are not the subject of the support proceeding and for whom the noncustodial parent is providing support. However, the court may only take this factor into consideration where the resources available to support such children are less than the resources available to support the children who are the subject of the proceeding” ( Matter of Palmieri v. La Conti, 242 A.D.2d 537, 538, 662 N.Y.S.2d 78 [citation omitted]; see Family Ct. Act § 413 [1][f][8] ). Upon the record before the Support Magistrate, the evidence did not support such a finding. RIVERA, J.P., BALKIN, HALL and SGROI, JJ., concur.