Matter of Commissioner of Social Servs. v. Mwalimu
Opinion
Matter of Commissioner of Social Servs. v Mwalimu
2026 NY Slip Op 04300
July 8, 2026
Appellate Division, Second Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This decision is uncorrected and subject to revision before publication in the Official Reports.
In the Matter of Commissioner of Social Services, on behalf of Marc King, respondent,
v
Desiree Mwalimu, appellant.
Supreme Court of the State of New York, Appellate Division, Second Judicial Department
Decided on July 8, 2026
2024-10314, 2024-10316, (Docket No. F-32762-19)
Betsy Barros, J.P.
William G. Ford
James P. McCormack
Lisa S. Ottley, JJ.
Davis Polk & Wardwell LLP, New York, NY (Rahul Krishnan, Meredith Manda, Dara Sheinfeld, and James H. R. Windels of counsel), for appellant.
Steven Banks, Corporation Counsel, New York, NY (Melanie T. West and Jonathan Schoepp-Wong of counsel), for respondent.
DECISION & ORDER
In a proceeding pursuant to Family Court Act article 4, the mother appeals from (1) an order of the Family Court, Kings County (Debra Katz Doogan, S.M.), dated July 16, 2024, and (2) an order of the same court (Jacqueline B. Deane, J.) dated September 7, 2024. The order dated July 16, 2024, after a hearing, directed the mother to pay retroactive child support in the sum of $26,980.99. The order dated September 7, 2024, denied the mother's objections to the order dated July 16, 2024.
ORDERED that the appeal from the order dated July 16, 2024, is dismissed, as that order was superseded by the order dated September 7, 2024; and it is further,
ORDERED that the order dated September 7, 2024, is reversed, on the law, the mother's objections to the order dated July 16, 2024, are granted, the order dated July 16, 2024, is vacated, and the petition is denied; and it is further,
ORDERED that one bill of costs is awarded to the mother.
Family Court Act § 422(a) permits a social services official to commence a proceeding for the support of a child when public assistance is provided for that child. In 2019, the petitioner, the Commissioner of Social Services, commenced this proceeding pursuant to Family Court Act article 4 on behalf of the father and against the mother for the support of two children. The father was the recipient of public assistance for the children from 2019 to 2023.
After a hearing, in an order dated July 16, 2024, the Support Magistrate directed the mother to pay retroactive child support in the sum of $26,980.99 for the period of time that the father received public assistance. The Support Magistrate found that the mother and the father shared custody of the children equally for the relevant time period, except for a certain period of time that one child resided exclusively with the mother. The Support Magistrate imputed certain income to the mother and determined that income could not be imputed to the father, as he was receiving public [*2]assistance. In light of the mother's and the father's respective incomes for the relevant time period, the Support Magistrate determined that the mother was the noncustodial parent for child support purposes, except for the period of time that one child resided exclusively with her, during which time she was the custodial parent for that child.
The mother filed objections to the order dated July 16, 2024. In an order dated September 7, 2024, the Family Court denied the mother's objections. The mother appeals.
The Child Support Standards Act (CSSA) "sets forth a three-step method for determining the appropriate amount of support and each parent's respective share of that obligation" (Matter of Smisek v DeSantis, 209 AD3d 142, 145; see Bast v Rossoff, 91 NY2d 723, 726-727). The CSSA requires a court "to direct 'the non-custodial parent to pay his or her pro rata share of the basic child support obligation'" based on that calculation, "unless it finds that amount to be 'unjust or inappropriate' based upon a consideration of statutory factors" (Matter of Smisek v DeSantis, 209 AD3d at 145, quoting Family Ct Act § 413[1][f][10]).
"[A] parent who has physical custody of the child for a majority of the time in a shared custody situation is considered the custodial parent for child support purposes" (id. at 147; see Cicale v Cicale, 231 AD3d 705, 707). "Where neither parent has the child for a majority of the time, the parent with the higher income, who bears the greater share of the child support obligation, should be deemed the noncustodial parent for the purposes of child support" (Matter of Conway v Gartmond, 144 AD3d 795, 796; see McEvoy v McEvoy, 219 AD3d 1513, 1515).
"A parent's child support obligation is determined by his or her ability to provide support, rather than the parent's current financial situation" (Nosratabdi v Aroni, 198 AD3d 976, 978 [internal quotation marks omitted]; see Matter of Nesterenko v Reshetilov, 247 AD3d 1041, 1041; Matter of Askinazi v Askinazi, 240 AD3d 775, 777]). "In determining child support obligations, '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'" (Matter of Coughlan v Coughlan, 218 AD3d 569, 570, quoting Malkani v Malkani, 208 AD3d 863, 865; see Nosratabdi v Aroni, 198 AD3d at 978). "'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'" (Matter of Coughlan v Coughlan, 218 AD3d at 570, quoting Tuchman v Tuchman, 201 AD3d 986, 990). "A support magistrate is afforded considerable discretion in determining whether to impute income to a parent, and [the Court] accord[s] great deference to credibility determinations of the support magistrate, who is in the best position to assess the credibility of the witnesses and the evidence proffered" (id. at 571 [internal quotation marks omitted]; see Matter of Glaudin v Glaudin, 213 AD3d 762, 763; Matter of Grace v Amabile, 181 AD3d 602, 604).
Contrary to the mother's contention, the Support Magistrate's determination to impute income to her is supported by the record and will not be disturbed (see Matter of Nesterenko v Reshetilov, 247 AD3d 1041; Matter of Patscot v Fisco, 166 AD3d 981).
However, the Support Magistrate erred in determining that income could not be imputed to the father as a recipient of public assistance (see Matter of Monroe County Dept. of Social Servs. v Bennett, 178 AD2d 974, 975; see also Matter of Jones v Stewart, ___ AD3d ___, 2026 NY Slip Op 03307; Matter of Smith v Jeffers, 110 AD3d 904). Contrary to the petitioner's contention, the Support Magistrate should have imputed income to the father in light of, inter alia, the father's testimony as to his employment history prior to the termination of his last full-time position in 2018 and the part-time positions that he held during the relevant time period, together with the petitioner's failure to present evidence demonstrating why the father lost his employment in 2018, what efforts the father made to secure full-time employment thereafter, and that anything prevented the father from securing similar employment to his previous full-time employment (see Matter of Jones v Stewart, ___ AD3d ___, 2026 NY Slip Op 03307; Matter of Nesterenko v Reshetilov, 247 AD3d at 1042).
In light of the father's income in 2018, which far exceeded the mother's ac
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