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In Matter of Niagara County Dept. of Social Servs. v Hueber (89 AD3d 1440 [4th Dept 2011]) the order at issue was not a modification, but an initial support order.
Summary of this case from Hunter v. TraynorOpinion
2011-11-10
In the Matter of NIAGARA COUNTY DEPARTMENT OF SOCIAL SERVICES, on behalf of Theresa A. KEARNS, Petitioner–Respondent,v.Roger L. HUEBER, Respondent–Appellant. (Appeal No. 2.)
Roger L. Hueber, Respondent–Appellant Pro Se.
Roger L. Hueber, Respondent–Appellant Pro Se.
MEMORANDUM:
In this proceeding pursuant to Family Court Act article 4, respondent father appeals
from an order denying his objections to the order of the Support Magistrate that, inter alia, imputed income to him based on the minimum wage for a period of approximately one year and two weeks and ordered that he pay child support arrears for that period in the amount of $659.18. It is undisputed that the father was incarcerated during the relevant time period.
Contrary to the father's contention, the Support Magistrate did not abuse her discretion by imputing income to the father for the time period in question for the purpose of calculating his child support obligation, despite the fact that he was incarcerated during that period. To the extent that the father's financial hardship is the result of his own wrongful conduct, he is not entitled to a reduction of his child support obligation ( see Matter of Grettler v. Grettler, 12 A.D.3d 602, 786 N.Y.S.2d 540; Matter of Winn v. Baker, 2 A.D.3d 1169, 768 N.Y.S.2d 708; see generally Matter of Knights v. Knights, 71 N.Y.2d 865, 866–867, 527 N.Y.S.2d 748, 522 N.E.2d 1045). We reject the father's further contention that 50% of the child support obligation should be apportioned to the child's noncustodial mother. There is no evidence in the record that the mother had any income or was capable of earning income. Thus, the mother's pro rata share of the child support obligation is zero ( see generally Family Ct. Act § 413[1][c][2] ).
The father's contention that the Support Magistrate should have calculated his support obligation using the statutory percentage for two children rather than the statutory percentage for one child is not preserved for our review inasmuch as it is raised for the first time on appeal ( see generally Matter of Erie County Dept. of Social Servs. v. Shaw, 81 A.D.3d 1328, 916 N.Y.S.2d 396; Matter of White v. Knapp, 66 A.D.3d 1358, 886 N.Y.S.2d 527). In any event, that contention is without merit because the father is the parent of only one child in the household in question. “The basic child support obligation must be determined on a per household basis [,] and it is inappropriate to use a percentage [that] is based on a total number of children living in different households” ( Buck v. Buck, 195 A.D.2d 818, 818, 600 N.Y.S.2d 520; see Matter of Slocum v. Robertson, 217 A.D.2d 940, 631 N.Y.S.2d 260).
Contrary to the father's further contention, petitioner was not required to produce the child's custodian (hereafter, custodian) on whose behalf the proceeding was commenced at the hearing on the petition ( see generally Family Ct. Act §§ 415, 422[a]; Matter of Department of Social Servs. v. Richard A., 138 A.D.2d 487, 526 N.Y.S.2d 121, lv. denied 72 N.Y.2d 804, 532 N.Y.S.2d 369, 528 N.E.2d 521). Furthermore, “if [the father] wished to challenge [the custodian's] eligibility for welfare, he should have done so at the ... hearing. [Inasmuch as] he had the opportunity to be heard at that time, he was not deprived of due process” ( Matter of Commissioner of Social Servs. of City of N.Y. v. Remy K.Y., 298 A.D.2d 261, 262, 748 N.Y.S.2d 732). In any event, petitioner presented documentary evidence that the custodian and the child received public assistance during the relevant time period, and great deference should be given to the Support Magistrate's evaluation of the proffered evidence ( see Matter of Manocchio v. Manocchio, 16 A.D.3d 1126, 1128, 792 N.Y.S.2d 279).
Finally, contrary to the father's contention, Family Court properly refused to consider the exhibits submitted in support of the father's written objections because they “were not offered by the father at the ... [hearing] before the Support Magistrate” ( Matter of Williams v. Williams, 37 A.D.3d 843, 844, 831 N.Y.S.2d 243; see
also Matter of Lahrs v. Lahrs, 158 A.D.2d 944, 551 N.Y.S.2d 105).
It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.