Tuesday, December 29, 2015
DIVORCE - IMPUTING INCOME TO DISABLED SPOUSE?
Brady v Bounsing-Brady 2015 NY Slip Op 06999 Decided on September 30, 2015 Appellate Division, Second Department
"A court need not rely upon a party's own account of his or her finances, but may impute income based upon the party's past income or demonstrated future potential earnings (see Brown v Brown, 239 AD2d 535). The court may impute income to a party based on his or her employment history, future earning capacity, educational background, or money received from friends and relatives (see Wesche v Wesche, 77 AD3d 921, 923). Here, the Supreme Court erred in imputing yearly income of $9,216 to the defendant, in addition to the $20,784 yearly income the defendant receives as Social Security disability benefits and retirement disability benefits. The defendant demonstrated through, inter alia, the testimony of her expert witness, that she has been permanently disabled since January 1998 as a result of a workplace injury and, thus, unable to work (cf. Matter of Bukovinsky v Bukovinsky, 299 AD2d 786, 787). Accordingly, the determination of the defendant's child support obligation, which was based in part on the defendant's imputed income, [*2]is incorrect, and the matter must be remitted to the Supreme Court, Orange County, for, inter alia, a new determination of the defendant's child support obligation. As part of that determination, the Supreme Court must consider whether the child support obligation is "unjust or inappropriate" (Domestic Relations Law § 240[1-b][f]), such that a deviation from the Child Support Standards Act figure is required (see Mollon v Mollon, 282 AD2d 659, 660)."