        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

1349
CAF 12-01059
PRESENT: CENTRA, J.P., FAHEY, SCONIERS, VALENTINO, AND MARTOCHE, JJ.


IN THE MATTER OF ELIZABETH A. JEFFERY,
PETITIONER-APPELLANT,

                    V                                MEMORANDUM AND ORDER

GEOFFREY R. SPRAGUE, RESPONDENT-RESPONDENT.


MICHELLE A. COOKE, BATH, FOR PETITIONER-APPELLANT.

WENDY L. GOULD, BATH, FOR RESPONDENT-RESPONDENT.


     Appeal from an order of the Family Court, Steuben County (Joseph
W. Latham, J.), dated January 3, 2012 in a proceeding pursuant to
Family Court Act article 4. The order denied the petition for an
increase in child support.

     It is hereby ORDERED that the order so appealed from is
unanimously affirmed without costs.

     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 AD3d 1646, 1648 [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 AD2d 968, 968, quoting Family Ct Act § 439 [e]
[ii]; see Matter of Kellogg v Kellogg, 300 AD2d 996, 996). 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 AD2d 921, 922), and we conclude that the court did not
                                 -2-                          1349
                                                         CAF 12-01059

abuse its discretion in declining to impute income to the father.




Entered:   February 1, 2013                     Frances E. Cafarell
                                                Clerk of the Court
