Opinion
2001-10182
Submitted October 15, 2002.
January 21, 2003.
In an action for a divorce and ancillary relief, the plaintiff husband appeals, as limited by his brief, from so much of an order of the Supreme Court, Suffolk County (McNulty, J.), dated September 26, 2001, as, after a hearing, denied his application for an award of child support and other ancillary relief.
Glenn S. Koopersmith, Garden City, N.Y., for appellant.
Before: MYRIAM J. ALTMAN, J.P., GLORIA GOLDSTEIN, LEO F. McGINITY, WILLIAM F. MASTRO, JJ.
DECISION ORDER
ORDERED that the order is affirmed insofar as appealed from, without costs or disbursements.
A court may award child support based upon a party's earning potential. However, such a determination must have some basis in law and fact (see Matter of Joseph v. Dalmacy, 270 A.D.2d 489; Petek v. Petek, 239 A.D.2d 327, 328). Here, there was no evidence adduced at the hearing, such as past earnings or educational background, to support the appellant's contention that income should be imputed to the defendant wife (see Matter of Zhigina v. Adzhiashvili, 292 A.D.2d 625; Petek v. Petek, supra at 328; Matter of Zwick v. Kulhan, 226 A.D.2d 734). Under the circumstances of this case, the Supreme Court providently exercised its discretion in refusing to fashion an award of child support based upon the defendant's nonincome-producing assets (see Domestic Relations Law § 240[1-b][b][5]; cf. Matter of Cody v. Evans-Cody, 291 A.D.2d 27).
ALTMAN, J.P., GOLDSTEIN, McGINITY and MASTRO, JJ., concur.