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

363
CAF 13-01058
PRESENT: CENTRA, J.P., FAHEY, LINDLEY, SCONIERS, AND WHALEN, JJ.


IN THE MATTER OF KARLA BOW, PETITIONER-APPELLANT,

                       V                             MEMORANDUM AND ORDER

JOSEPH BOW, RESPONDENT-RESPONDENT.
(APPEAL NO. 1.)


KARLA BOW, PETITIONER-APPELLANT PRO SE.


        Appeal from an order of the Family Court, Niagara County (John F.
Batt,    J.), entered August 20, 2012 in a proceeding pursuant to Family
Court    Act article 4. The order denied petitioner’s written objections
to an    order of the Support Magistrate on her petition to modify a
prior    child support order.

     It is hereby ORDERED that the order so appealed from is
unanimously modified on the law by vacating the amount of respondent’s
annual income and the amount of child support awarded, and as modified
the order is affirmed without costs and the matter is remitted to
Family Court, Niagara County, for further proceedings in accordance
with the following Memorandum: In appeal No. 1, petitioner mother
appeals pro se from an order denying her written objections to the
order of the Support Magistrate on her petition to modify a prior
child support order. In appeal No. 2, the mother appeals pro se from
a corrected order that denied in part her written objections to the
Support Magistrate’s order on her petition alleging that respondent
father willfully violated a prior order of support.

     With respect to appeal No. 1, we reject the mother’s contention
that Family Court erred in awarding arrears from October 29, 2010, the
date on which she petitioned for arrears and recalculation of child
support, rather than from several specified earlier dates (see Family
Ct Act § 449 [2]; Matter of Aiken v Aiken, 115 AD2d 919, 920; see also
Matter of Johna M.S. v Russell E.S., 10 NY3d 364, 366). Insofar as
the mother’s contention invokes equitable principles, we note that
Family Court lacks equity jurisdiction (see Matter of Brescia v Fitts,
56 NY2d 132, 139).

     Next, the mother contends that the court erred in automatically
applying the biannual child support recalculation clause in the
parties’ divorce settlement, which was incorporated but not merged in
the judgment of divorce, based on 2011 income. Contrary to the
mother’s contention, the court did not automatically apply the
biannual child support recalculation clause. Rather, the record
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                                                         CAF 13-01058

establishes that the mother requested a prospective recalculation in
her October 29, 2010 modification petition; the mother’s petition
stated that neither party was opposed to the implementation of the
biannual recalculation clause; the mother acknowledged that a
recalculation would be needed in order to calculate the parties’
current pro rata share of uninsured, unreimbursed medical expenses;
and, indeed, the father requested a prospective child support
recalculation based on 2011 income. The record thus establishes that
the court’s decision to recalculate child support based on 2011 income
was based on factors advanced by the parties, and we further conclude
that the court’s decision did not unfairly prejudice the mother
because she had adequate notice thereof and the opportunity to present
evidence (cf. Matter of Revet v Revet, 90 AD3d 1175, 1176-1177; see
generally Matter of Heintz v Heintz, 28 AD3d 1154, 1155). The mother
failed to preserve for our review her further contention that the
court had previously applied the recalculation clause in an
inconsistent manner that favored the father inasmuch as she failed to
raise that contention concerning the prior support recalculations in
her written objections to the Support Magistrate’s order (see Family
Ct Act § 439 [e]; Matter of White v Knapp, 66 AD3d 1358, 1359).

     The mother also contends that the court erred in determining the
parties’ 2011 income by using the proof of income provided by the
parties in an inconsistent manner. We reject that contention. “A
court need not rely upon a party’s own account of his or her finances”
(Matter of Rohme v Burns, 92 AD3d 946, 947), and the court’s
determination whether to impute income to the obligor spouse “is given
great deference on appeal” (Khaimova v Mosheyev, 57 AD3d 737, 738).
We further reject the mother’s contention that her income
determination is inaccurate due to lack of notice and her related
inability to present evidence because, as we previously concluded
herein, the mother had sufficient notice. Moreover, the mother had
the opportunity to list unreimbursed business expenses in her 2011
financial affidavit, and the court’s alleged failure to consider those
expenses is attributable to the mother’s failure to provide that
information to the court.

     We agree with the mother, however, that the court erred in
determining the father’s 2011 income. It does not appear that the
father’s 2011 rental income was included in his gross income, and we
are unable on the record before us to determine the amount of the
father’s 2011 rental income (see McAuliffe v McAuliffe, 70 AD3d 1129,
1133). We therefore modify the order in appeal No. 1 by vacating the
amount of the father’s income as well as the amount of child support
awarded, and we remit the matter to Family Court to determine the
proper amount of the father’s income upon taking into account the
amount of his 2011 rental income, and to recalculate the father’s
resulting child support obligation. Contrary to the mother’s
contention, however, both rental income and rental losses are to be
considered by the court (see Matter of Petkovsek v Snyder, 255 AD2d
960, 960; see also Matter of Pringle v Pringle, 283 AD2d 966, 967).
We have examined the mother’s remaining contentions in appeal No. 1
and conclude that they are without merit.
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                                                         CAF 13-01058

     With respect to appeal No. 2, we reject the mother’s contention
that the court erred in finding that the father did not willfully
violate a prior support order. The mother did not meet her burden of
proving that the father “failed to pay support as ordered” (Matter of
Powers v Powers, 86 NY2d 63, 69; see Family Ct Act § 454 [3]). The
receipts presented by the mother to the court relating to alleged
uninsured, unreimbursed medical expenses and expenses related to
medical appointments were both disorganized and confusing. According
to the father, the mother claimed reimbursement for medical expenses
paid in cash, but she had also withdrawn large amounts of cash from
the father’s health savings account. In addition, the mother failed
to record whether the expenses related to medical appointments were
incurred on a day when either of the children had a medical
appointment. Even assuming, arguendo, that the parties’ stipulation
was intended to cover expenses incurred in the children’s hometown of
Lockport, a point disputed by the parties, we conclude in any event
that the meal receipts claimed as expenses related to medical
appointments fall short of the totals sought by the mother in her
monthly summaries submitted to the court. Because the father did not
willfully violate the order, the decision not to award reasonable
counsel fees was properly within the court’s discretion (see § 438
[a], [b]; Matter of Nieves-Ford v Gordon, 47 AD3d 936, 937; Sampson v
Glazer, 109 AD2d 831, 832), and we note in any event that the mother
failed to present evidence of her attorney’s limited services
sufficient to provide an adequate basis for an award of reasonable
attorney’s fees. The court did not abuse its discretion in denying
the mother’s informal request, by way of a facsimile letter, for a
further extension in which to submit additional documents to perfect
her written objections. “It is well recognized that the [court’s]
power to control its calendar is a vital consideration in the
administration of the courts” (Headley v Noto, 22 NY2d 1, 4, rearg
denied 22 NY2d 973; see Matter of Bales, 93 AD2d 861, 862, lv
dismissed 60 NY2d 554, 60 NY2d 701).

     Lastly, we reject the mother’s request for reassignment to a
different court upon remittal, inasmuch as there was no showing of
bias or an abuse of discretion on the part of the court (see generally
CPLR 5522; William Kaufman Org. v Graham & James, 269 AD2d 171, 174).




Entered:   May 9, 2014                         Frances E. Cafarell
                                               Clerk of the Court
