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

1002
CAF 15-00372
PRESENT: SCUDDER, P.J., SMITH, LINDLEY, VALENTINO, AND WHALEN, JJ.


IN THE MATTER OF ROSANNE DELSIGNORE,
PETITIONER-RESPONDENT,

                    V                             MEMORANDUM AND ORDER

FRANK A. DELSIGNORE, JR., RESPONDENT-APPELLANT.


DEBORAH J. SCINTA, ORCHARD PARK, FOR RESPONDENT-APPELLANT.

LAW OFFICE OF CHARLES A. MESSINA, BLASDELL (CHARLES A. MESSINA OF
COUNSEL), FOR PETITIONER-RESPONDENT.


     Appeal from an order of the Family Court, Erie County (Kevin M.
Carter, J.), entered May 19, 2014. The order denied the objections of
respondent to an order of the Support Magistrate.

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

     Memorandum: Petitioner commenced this postjudgment divorce
proceeding seeking an increase in the child support paid by
respondent. Respondent appeals from an order that denied his
objections to the Support Magistrate’s order, which directed that his
support payments be increased. Contrary to respondent’s contention,
Family Court did not err in denying his objection to that part of the
Support Magistrate’s order refusing to apply his payments for his
daughter’s college expenses as a credit against his child support
obligation. “ ‘A credit against child support for college expenses is
not mandatory but depends upon the facts and circumstances in the
particular case, taking into account the needs of the custodial parent
to maintain a household and provide certain necessaries’ ” (Juhasz v
Juhasz [appeal No. 2], 92 AD3d 1209, 1212). In addition, however,
“such a credit covers only those expenses associated with the child’s
room and board, rather than college tuition” (Ayers v Ayers, 92 AD3d
623, 625; see Azizo v Azizo, 51 AD3d 438, 439-440). Here, the child
received certain grants and awards that paid for some of her expenses,
and the Support Magistrate properly concluded that the college bills
did not establish what part, if any, of those grants and awards was
applied to room and board. Consequently, respondent failed to
establish that the payments were duplicative of his child support
obligation (see generally Matter of Levy v Levy, 52 AD3d 717, 718).
The Support Magistrate also properly concluded that petitioner was
required to maintain a residence for the parties’ other child
throughout the year, and for the college student during school breaks
                                 -2-                          1002
                                                         CAF 15-00372

(see Juhasz, 92 AD3d at 1212). Inasmuch “[a]s the Support
Magistrate’s findings were based on credibility determinations and
supported by the record, they should not be disturbed” (Matter of
Gansky v Gansky, 103 AD3d 894, 895).

     Contrary to respondent’s further contention, the court did not
abuse its discretion in denying his objections to that part of the
Support Magistrate’s order that calculated petitioner’s income. In
determining the amount of child support that a parent must pay, a
support magistrate “is required to begin the calculation with the
parent’s ‘gross (total) income as should have been or should be
reported in the most recent federal income tax return’ ” (Matter of
Moran v Grillo, 44 AD3d 859, 860; see Marlinski v Marlinski, 111 AD3d
1268, 1270). Although a support magistrate is “also permitted . . .
to consider current income figures for the tax year not yet completed”
(Moran, 44 AD3d at 860), he or she is not required to do so, and here
the Support Magistrate properly used the prior year’s income tax
figures to calculate both parties’ incomes. Respondent’s further
contention that the Support Magistrate should have imputed additional
income to petitioner based on her ability to work is similarly without
merit. There is no evidence that petitioner reduced her resources or
income in order to reduce or avoid her obligation to support the
children (see Family Ct Act § 413 [1] [b] [5] [v]; Lattuca v Lattuca,
129 AD3d 1683, 1684). Indeed, as the Support Magistrate properly
noted, petitioner’s income had in fact increased during the time prior
to the filing of the petition. We therefore conclude that “the
Support Magistrate did not improvidently exercise her discretion in
declining to impute additional income to” petitioner (Matter of
Saladino v Saladino, 115 AD3d 867, 868).

     Finally, the court properly denied respondent’s objection to that
part of the Support Magistrate’s order refusing to characterize the
health insurance premiums that he paid on behalf of the subject
children as an unreimbursed health care expense that should be divided
between the parties. “Health insurance premiums are not the
equivalent of ‘unreimbursed health care expenses’ pursuant to Family
Court Act § 413 (1) (c) (former [5]), which was in effect when the
[judgment of divorce was entered]” (Matter of Kreiswirth v Shapiro,
103 AD3d 725, 725-726). Furthermore, as part of the parties’
stipulation underlying that judgment, respondent expressly agreed to
pay the children’s health care premiums in addition to his pro rata
share of the unreimbursed medical expenses. We note in any event that
the Support Magistrate took respondent’s payment of those health care
premiums into account in deciding to apply the statutory cap on the
parties’ income in calculating respondent’s child support obligation.




Entered:   November 13, 2015                    Frances E. Cafarell
                                                Clerk of the Court
