DECISION Objections to the order (Raimondi, J., S.M.), dated January 3, 2019, setting the basic child support obligation of Respondent at the amount of $54.00 per week and granting further relief having been filed with this Court by Andrew Winter, and no rebuttal thereto having been filed, the following disposition is made:Pursuant to Family Court Act §439 (e), the Objections are denied.The Support Magistrate’s order was proper.On or about June 6, 2018, Nicole Letizia filed a petition alleging that Andrew Winter (“Objector” or “Respondent”) is chargeable with the support of one child. After a hearing, the Support Magistrate ordered that Respondent pay basic child support at a rate of $54.00 per week and that Respondent “pay 47 percent of the unreimbursed health realted, dental and co-pay related expenses for the child for whom support is ordered, direct pay between the parties.”A. Objection to Using Gross Income Based on Ability To EarnTo reach this order, the Support Magistrate determined that the Respondent was able to earn $10.00 per hour based on Respondent’s testimony that he was earning that amount while he lived on Long Island. Respondent relocated voluntarily to North Carolina in 2017. Respondent objects to the child support calculation being based on $10.00 per hour, stating, “I don’t understand why I am being held to New York wages.”The law requires that “[t]he parents of a child under the age of twenty-one years are chargeable with the support of such child and, if possessed of sufficient means or able to earn such means, shall be required to pay for child support…” (Family Court Act §413 [1] [a] [emphasis supplied]). Here, based on the testimony of Respondent that Respondent was able to earn $10.00 per hour in Long Island, the Support Magistrate properly found that Respondent was able to earn such means.In addition, when a party has a reduction of income that is voluntary, such as when a party relocates from one residence to another as Respondent did, the Support Magistrate must base the child support order on the relocating party’s ability to earn (Matter of Zwick v. Kuhlan, 226 AD2d 734, 641 NYS2d 861 [2d Dept 1996]; see also, Family Court Act §413 [1] [b] [5] [v]).Because the law required the Support Magistrate to base the order on the Respondent’s ability to earn (as opposed to his actual earnings), the order properly held the Respondent to New York wages of $10.00 per hour. The objections as to this issue are denied.B. Objection to Not Finding Respondent DisabledThe Respondent also objects to the Support Magistrate’s finding that “Andrew Winter did not prove to the Court he is disabled or unable to provide support…” Respondent objects stating, “[t]he medical documentation clearly states that I have both disabilities. According to Social Security and American with Disabilities, [two specified conditions] are recognized as disabilities.”In our law, from time to time, the same word has different meanings. For example, here, the Respondent cites to the Social Security Act and the Americans with Disabilities Act.In the Social Security Act (42 USC §1382c; see also 42 USC §416 [i]), disability is defined as:[A]n individual shall be considered disabled…if he is unable to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than twelve months.Section 3 of the Americans with Disabilities Act (42 USC §12102) defines “disability” differently, saying:(1) Disability. The term “disability” means, with respect to an individual(A) a physical or mental impairment that substantially limits one or more major life activities of such individual;(B) a record of such an impairment; or(C) being regarded as having such an impairment….Of course, the Americans with Disabilities Act contemplates that someone with a disability as defined under that Act can work (see, Americans with Disabilities Act §3 et seq. [42 USC §101 et seq.]).Yet another definition of disability or disabled applies in child support cases in New York State. In the context of child support, a parent must show that the “medical condition at the relevant time prevented [the parent] from working in [any] capacity” (Matter of Briggs v. McKinney-Mays, 141 AD3d 648, 34 NYS3d 623 [2d Dept 2016]).Here, the dates on the medical documentation that Respondent obtained and had introduced into evidence show that although Respondent may have had some medical conditions, he was working at a rate of $10.00 per hour while suffering from those conditions. Therefore, the Support Magistrate properly found that the Respondent was able to work (at least to the extent of earning $10.00 per hour) and was not disabled. The objections as to this issue are denied.C. Objection to The Rate of Pay of the PetitionerFinally, the Objector, in essence, asks that the Court find that Petitioner’s hourly wage at one of Petitioner’s two jobs is $11.50 at one job and $12.25 at the other job with a minimum of three days per week. Using the imputed income formula that the Support Magistrate did, and assuming that the Support Magistrate misstated the Petitioner’s hourly income, and further assuming that the Respondent’s statement about the hearing testimony is correct, the recalculation of the pro-rata percentages would not change.Thus, this Court finds that the Support Magistrate’s Order was properly made, and denies this portion of the objections as well.D. Any and All Other ObjectionsThe other contentions that the Respondent raises in the objections also would not warrant granting the objections or granting any relief in Respondent’s favor.Thus, the objections are denied in their entirety.Central Islip, NYDated: January 22, 2019TO: Petitioner/RespondentSCUDecision was mailed to parties/counsel on 1/24, 2019 by: RG Part 2.
