Costanzo v. Costanzo

8 A.D.3d 1031, 778 N.Y.S.2d 374, 2004 N.Y. App. Div. LEXIS 8242

Opinion

Appeal from an order of the Family Court, Niagara County (David Seaman, J.), entered August 4, 2003. The order denied petitioner’s objections to an order of support of a Hearing Examiner.

It is hereby ordered that the order so appealed from be and the same hereby is unanimously reversed on the law without costs, the objections are granted, and the matter is remitted to Family Court, Niagara County, for further proceedings in accordance with the following memorandum: We agree with petitioner that Family Court erred in denying her objections to the Hearing Examiner’s order. Petitioner commenced this proceeding seeking an upward modification of child support and counsel fees. We agree with petitioner that, in determining whether she was entitled to an upward modification of child support, the Hearing Examiner erred in failing to include in respondent’s income both lump sum workers’ compensation benefits and Social Security benefits received by respondent (see Family Ct Act § 413 [1] [b] [5] [iii] [A], [D]). We therefore reverse the order, grant petitioner’s objections, and remit the matter to Family Court to determine whether petitioner is entitled to an upward modification of child support based upon an accurate calculation of respondent’s income and to determine whether petitioner is entitled to counsel fees (see § 438). Present— Hurlbutt, J.P., Scudder, Gorski, Martoche and Hayes, JJ.