Opinion
2013-02-1
In the Matter of Elizabeth A. JEFFERY, Petitioner–Appellant, v. Geoffrey R. SPRAGUE, Respondent–Respondent.
Michelle A. Cooke, Bath, for Petitioner–Appellant. Wendy L. Gould, Bath, for Respondent–Respondent.
Michelle A. Cooke, Bath, for Petitioner–Appellant.Wendy L. Gould, Bath, for Respondent–Respondent.
PRESENT: CENTRA, J.P., FAHEY, SCONIERS, VALENTINO, AND MARTOCHE, JJ.
MEMORANDUM:
Petitioner mother appeals from an order of Family Court that granted respondent father's objections to the order of the Support Magistrate and denied the petition for an increase in child support. We reject the mother's contention that, in determining whether to grant the objections to the Support Magistrate's order, the court was limited to determining whether the Support Magistrate abused his discretion. Although “[t]he greatest deference should be given to the decision of the [Support Magistrate,] who is in the best position to assess the credibility of the witnesses and the evidence proffered” (Matter of DeNoto v. DeNoto, 96 A.D.3d 1646, 1648, 946 N.Y.S.2d 809 [internal quotation marks omitted] ), the court “was empowered to ‘make, with or without holding a new hearing, [its] ... own findings of fact’ ” (Matter of Boyer v. Boyer, 261 A.D.2d 968, 968, 689 N.Y.S.2d 850, quoting Family Ct. Act § 439[e][ii]; see Matter of Kellogg v. Kellogg, 300 A.D.2d 996, 996, 752 N.Y.S.2d 462). Thus, the court had broad authority to review the order of the Support Magistrate and to grant a party's objections to the order upon determining that it would impose a hardship on that party. On this record, we conclude that the court properly concluded that using the father's 2010 income, which was higher than his 2011 income, to determine that he could afford to pay more than double the amount of his previous child support payments would result in a nearly impossible financial situation for the father at his 2011 earning level. Furthermore, “[c]ourts have ‘considerable discretion to attribute or impute an annual income to a parent’ ” ( Winnert–Marzinek v. Winnert, 291 A.D.2d 921, 922, 737 N.Y.S.2d 200), and we conclude that the court did not abuse its discretion in declining to impute income to the father.
It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.