Denham v. Kaplan

16 A.D.3d 685, 793 N.Y.S.2d 58, 2005 N.Y. App. Div. LEXIS 3300

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 28, 2005
• Status: Published

Opinion

In a child support proceeding pursuant to Family Court Act article 4, the appeal is from an order of the Family Court, Richmond County (Eorzio, J.), dated June 14, 2004, which denied the father’s objections to an order of the same court (Hickey, S.M.), dated January 12, 2004, which, after a hearing, awarded the petitioner the sum of $596 per month in child support and the sum of $12,204 in arrears.

Ordered that the order is affirmed, with costs.

In light of the father’s contradictory testimony regarding his finances and his failure to submit several requested documents, including a properly completed and notarized financial disclosure affidavit, the Family Court properly determined that the Support Magistrate had insufficient information to determine the father’s gross income (see Kay v Kay, 37 NY2d 632 [1975]; Matter of Grossman v Grossman, 248 AD2d 536 [1998]).

Where there is insufficient evidence to determine gross income, the Child Support Standards Act provides that “the court shall order child support based upon the needs or standard of living of the child, whichever is greater” (Family Ct Act § 413 [1] [k]; see Orlando v Orlando, 222 AD2d 906, 908 [1995]). Accordingly, the Family Court properly denied the father’s objections to the Support Magistrate’s determination based upon the needs of the child (see Matter of Grossman v Grossman, supra; Matter of Commissioner of Social Servs. [Wilcher] v McDonald, 245 AD2d 506 [1997]). Florio, J.P., S. Miller, Luciano and Mastro, JJ., concur.