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

1423
CAF 15-00146
PRESENT: SCUDDER, P.J., SMITH, CENTRA, PERADOTTO, AND CARNI, JJ.


IN THE MATTER OF ISIDRO FIGUEROA, JR.,
PETITIONER-APPELLANT,

                      V                              MEMORANDUM AND ORDER

ANNETTE FIGUEROA, RESPONDENT-RESPONDENT.


LEGAL ASSISTANCE OF WESTERN NEW YORK, INC., GENEVA (MOLLIE A. DAPOLITO
OF COUNSEL), FOR PETITIONER-APPELLANT.

CECILY G. MOLAK, LYONS, FOR RESPONDENT-RESPONDENT.


     Appeal from an order of the Family Court, Wayne County (John B.
Nesbitt, J.), entered March 25, 2014 in a proceeding pursuant to
Family Court Act article 4. The order affirmed the order of the
Support Magistrate and denied the objections of petitioner to that
order.

     It is hereby ORDERED that the order so appealed from is
unanimously reversed on the law without costs and the matter is
remitted to Family Court, Wayne County, for a new hearing.

     Memorandum: Petitioner father appeals from an order denying his
objections to the order of the Support Magistrate, who denied in part
his petitions seeking a downward modification of his child support
obligation. The Support Magistrate imputed income to the father in
determining his child support obligation. “[I]n determining a party’s
child support obligation, a court need not rely upon the party’s own
account of his or her finances, but may impute income based upon the
party’s past income or demonstrated earning potential” (Belkhir v
Amrane-Belkhir, 118 AD3d 1396, 1397 [internal quotation marks
omitted]; see Matter of Hurd v Hurd, 303 AD2d 928, 928-929). We agree
with the father that, in imputing income to him, the Support
Magistrate erred in relying on facts that were not in evidence (see
Matter of Mentor v DeLorme, 17 AD3d 1012, 1012-1013). We therefore
reverse the order and remit the matter to Family Court for a new
hearing. In light of our determination, we do not consider the
father’s remaining contentions.




Entered:    December 31, 2015                   Frances E. Cafarell
                                                Clerk of the Court
