Friday, March 25, 2016

CHILD SUPPORT - IMPUTING INCOME TO CUSTODIAL SPOUSE



Mancuso v Mancuso 2015 NY Slip Op 09478 Decided on December 23, 2015 Appellate Division, Fourth Department (emphasis supplied):
 
""Among the factors to be considered in determining whether there has been a change in circumstances warranting an upward modification of support are the increased needs of the children, the increased cost of living insofar as it results in greater expenses for the children, a loss of income or assets by a parent or a substantial improvement in the financial condition of a parent, and the current and prior lifestyles of the children" (Matter of DiGiorgi v Buda, 26 AD3d 434, 434 [internal quotation marks omitted]; see Shedd v Shedd, 277 AD2d 917, 917-918, lv dismissed 96 NY2d 754). " While an increase in the noncustodial parent's income is a factor which may be considered in deciding whether to grant an upward modification of child support, this factor alone is not determinative' " (DiGiorgi, 26 AD3d at 434).

Here, the record establishes that defendant's income had decreased since the judgment was entered, and therefore the termination of his maintenance obligation would result in only a small increase in his income. Although plaintiff contends that the termination of maintenance resulted in a substantial change in her income, she failed to show that she would be unable to replace that lost income through employment. Indeed, in recalculating defendant's child support obligation, the court imputed income to plaintiff in the amount she had been receiving in [*2]maintenance (see Belkhir v Amrane-Belkhir, 118 AD3d 1396, 1397-1398; Irene v Irene [appeal No. 2], 41 AD3d 1179, 1180-1181). Plaintiff failed to demonstrate any other factors in support of an upward modification in child support inasmuch as she did not introduce any evidence of increased needs of the children, a loss of assets, or a change in the current and prior lifestyles of the children (see Matter of Rosenthal v Buck, 281 AD2d 909, 909-910; Matter of Faery v Piedmont, 181 AD2d 1014, 1014)."

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