         SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department
1141
CAF 10-02335
PRESENT: FAHEY, J.P., CARNI, SCONIERS, GORSKI, AND MARTOCHE, JJ.


IN THE MATTER OF NIAGARA COUNTY DEPARTMENT OF
SOCIAL SERVICES, ON BEHALF OF THERESA A. KEARNS,
PETITIONER-RESPONDENT,

                    V                              MEMORANDUM AND ORDER

ROGER L. HUEBER, RESPONDENT-APPELLANT.
(APPEAL NO. 2.)


ROGER L. HUEBER, RESPONDENT-APPELLANT PRO SE.


     Appeal from an order of the Family Court, Niagara County (John F.
Batt, J.), entered November 10, 2010 in a proceeding pursuant to
Family Court Act article 4. The order denied respondent’s written
objections to an order of support issued by the Support Magistrate.

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

     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
AD3d 602; Matter of Winn v Baker, 2 AD3d 1169; see generally Matter of
Knights v Knights, 71 NY2d 865, 866-867). 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
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                                                         CAF 10-02335

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 AD3d 1328; Matter of White v Knapp, 66 AD3d 1358). 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 AD2d 818, 818; see Matter of Slocum v Robertson, 217 AD2d
940).

     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 AD2d 487, lv denied 72
NY2d 804). 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 AD2d 261, 262). 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 AD3d 1126, 1128).

     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 AD3d 843, 844; see also Matter of Lahrs v
Lahrs, 158 AD2d 944).




Entered:   November 10, 2011                    Patricia L. Morgan
                                                Clerk of the Court
