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

341
CAF 15-01514
PRESENT: SMITH, J.P., DEJOSEPH, NEMOYER, TROUTMAN, AND SCUDDER, JJ.


IN THE MATTER OF GWENDOLYN G. MUOK,
PETITIONER-RESPONDENT-RESPONDENT,

                    V                              MEMORANDUM AND ORDER

JOSEPH N. MUOK, RESPONDENT-PETITIONER-APPELLANT.


PETER J. DIGIORGIO, JR., UTICA, FOR RESPONDENT-PETITIONER-APPELLANT.

MARY R. HUMPHREY, NEW HARTFORD, FOR PETITIONER-RESPONDENT-RESPONDENT.


     Appeal from a corrected order of the Family Court, Oneida County
(Randal B. Caldwell, J.), entered March 23, 2015 in a proceeding
pursuant to Family Court Act article 4. The corrected order denied
respondent-petitioner’s objections to an order of the Support
Magistrate.

     It is hereby ORDERED that the corrected order so appealed from is
unanimously modified on the facts and law by granting respondent-
petitioner’s second and fourth objections and granting his petition to
the extent of imputing income to petitioner-respondent in the amount
of $20,000, exclusive of Social Security income, and as modified the
corrected order is affirmed without costs and the matter is remitted
to Family Court, Oneida County, for further proceedings in accordance
with the following memorandum: Respondent-petitioner father appeals
from an order denying his written objections to an order of the
Support Magistrate that granted petitioner-respondent mother’s
petition seeking to modify the order of support based upon the more
than 15% increase in the father’s income (see Family Ct Act § 451 [3]
[b] [ii]), and denied his petition seeking a determination imputing
income to the mother in the amount of $100,000. The parties have
three children, one living with the father and two living with the
mother. We reject the father’s contention that Family Court erred in
denying his objections related to the calculation of child support on
the amount of income over the statutory cap of $141,000. The Support
Magistrate properly considered the disparity in the parties’ incomes
and the lifestyle the children would have enjoyed had the marriage
remained intact in deciding to include income over the statutory cap
in determining the child support obligation (see § 413 [1] [f]; Martin
v Martin, 115 AD3d 1315, 1316; cf. Antinora v Antinora, 125 AD3d 1336,
1337-1338; see generally Matter of Cassano v Cassano, 85 NY2d 649,
653). Further, the Support Magistrate set forth the basis for her
determination not to apply the statutory formula to the amount of
income over the statutory cap and related her determination to the
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                                                         CAF 15-01514

section 413 (1) (f) factors (cf. Matter of Miller v Miller, 55 AD3d
1267, 1268; see generally Cassano, 85 NY2d at 654-655).

     We agree with the father, however, that the court erred in
determining that the Support Magistrate did not abuse her discretion
in imputing annual income to the mother of $20,000, which included
$13,164 that she received in Social Security income. “Trial courts .
. . possess considerable discretion to impute income in fashioning a
child support award . . . [A] court’s imputation of income will not be
disturbed so long as there is record support for its determination”
(Belkhir v Amrane-Belkhir, 118 AD3d 1396, 1398 [internal quotation
marks omitted]). Here, there is no record support for the
determination not to impute income to the mother.

     The record establishes that the mother was 65 years old and had
not worked since 2007, when she closed a Montessori school that she
operated. The record further establishes that the mother has a
bachelor’s degree and an MBA, and that she graduated from law school
but did not pass the bar exam and was therefore not admitted to the
practice of law. The mother testified that, prior to the hearing, she
sought only jobs as an attorney, for which she is not qualified.
Thus, the mother has not sought employment for which she is qualified
since 2007, and it is well settled that “[i]ncome may properly be
imputed when there are no reliable records of a parent’s actual
employment income or evidence of a genuine and substantial effort to
secure gainful employment” (Matter of Monroe County Support Collection
Unit v Wills, 21 AD3d 1331, 1332, lv denied 6 NY3d 705). The record
is sufficient for us to determine that, based upon her education and
experience, the mother has the ability to earn income in the amount of
$20,000 per year, exclusive of the Social Security income. We
therefore modify the corrected order accordingly, and we remit the
matter to Family Court to recalculate the respective child support
obligations of the parties and their respective obligations for
uninsured medical expenses. We have considered the father’s remaining
contentions and conclude that they are without merit. In the absence
of a cross appeal by the mother, we do not consider her contentions
with respect to alleged errors.




Entered:   April 29, 2016                       Frances E. Cafarell
                                                Clerk of the Court
