Decision/Findings of Fact Support Magistrate Sandra Stines, makes the following decision/ findings of fact after trial: Procedural history On March 6, 2024 Petitioner, Gina M B ((hereinafter referred to as “Ms. B”) filed a petition to establish support for one child born March 14, 2013 (hereinafter referred to as “child”) who resides with Ms. B. A putative father registry is in the Court’s file reflecting that Ms. B and Respondent Jason D A (hereinafter referred to as “Mr. A”) are the parents of the child. On June 20, 2024 Ms. B and Mr. A appeared waiving counsel, issue joined, a trial order and temporary order of support issued, and the matter was adjourned for fact finding to November 4, 2024. On November 4, 2024 Ms. B and Mr. A appeared waiving counsel, fact finding commenced and concluded. Fact finding Evidence a. The following was admitted in evidence on consent: Petitioner’s 1 paystubs Respondent’s A 2023 1099 b. Ms. B testified Mr. A works at an all-male shelter in Randalls Island. She found his “id” in his car reflecting same. About four years ago Ms. B worked at a “dispatch place” with Mr. A. “It’s a taxi service that has 15-20 cars on the fleet.” The child is asthmatic. Ms. B provides health insurance for the child through her job at the fire department. Mr. A does not help her “in any way, he does not give me (Ms. B) money.” She, “bought my (her) son a cell phone so he can keep in touch with his father.” The child “is growing like a tree. I am asking for help.’ a. Mr. A testified He worked with immigrants but was fired. Now he works “a little a day or two” earning “$70.00 a day” for a “10-12 hour” workday as a dispatcher. His base pay is $70.00 if the drivers don’t tip. If the drivers tip, he can earn up to $200.00 a day but Mr. A was unsure as to when he earns over $70.00 a day. Mr. A receives “public assistance” and “food stamps”. When asked what efforts he has made to obtain stable employment Mr. A responded, “I can’t get paid to take of my mother. I try all the time. I try taxi. I fill out applications, porters, driving jobs things like that, Uber” Mr. A does not “pay for food, cable, utilities, rent”. “Nothing is preventing me from working”. He saw the child last weekend. “The jobs I used to work were 1099.” Ms. B lied she didn’t work dispatch with him. “If I can deliver pizza, I will, I can do whatever, but I can’t pay more than $50.00 a week (in child support)”. When Mr. A saw he owed $1,000.00 for child support he immediately paid it on October 3rd. When asked by Ms. B, “Are you going to attempt to get a job?”, Mr. A responded, “I must be doing something, if I have four children, I take them to school. I buy school supplies.” He bought the child a Playstation 5 that was $600 and a VR that was $500.00. Mr. A owns a 2004 Honda Crv, 1991 Honda Civic, 2013 Honda Odyssey, a crashed 2012 Acura. He pays $250.00 month to insure these vehicles and $50.00 or $60.00 monthly for gas. Mr. A drives a 2023 BMW but it is not his. Mr. A has four children who live with him ages 10,9,6, and 4. He also has a seven year old child who lives in Pennsylvania for whom he is not paying support. Discussion On June 20, 2024 the parties were issued a trial order that is in the Court’s file that they acknowledged they received. That trial order stated, in part, that all disclosure pursuant to Family Ct Act §424-a should be submitted to the Court and exchanged with each other by August 10, 2024. Email addresses for each party and the Court were contained in the trial order. Additionally, Family Ct Act §424-a (a) requires that, “in all support proceedings in family court, there shall be compulsory disclosure by both parties of their respective financial states. No showing of special circumstances shall be required before such disclosure is ordered and such disclosure may not be waived by either party or by the court. A sworn statement of net worth shall be filed with the clerk of the court on a date to be fixed by the court, no later than ten days (emphasis added) after the return date of the petition, id. By November 4, 2024 the only disclosure submitted were recent paystubs by Ms. B (Petitioner’s 1) and a 2023 1099 from Mr. A reflecting income of $9,817.50 (Respondent’s A). Family Court support proceedings are special proceedings intended for a “quick and inexpensive way to implement a right” Matter of K.Z. v. P.M. 29 Misc 3d 672 Family Ct of NY, Orange Cnty August 2, 2010 citing, D. Siegel, NY Prac §547, at 943 [4th ed 2005]; NY C.P.L.R. §304. To further the goal of expeditious adjudication support proceedings are commenced by petition (NY C.P.L.R. §304(a)) and require leave of court for discovery NY C.P.L.R. §408. By November 4, 2024, eight months passed from the date this petition was filed. To further the goal of efficient adjudication so that the child herein receive the support for which he is entitled (Matter of Barlow v. Barlow 112 A.D.3d 817, 976 N.Y.S. 2d 573 (2nd Dept 2013) this Court relies on Family Ct Act §413 (k) to determine support (When a party has defaulted and/or the court is otherwise presented with insufficient evidence to determine gross income, the support obligation shall be based on available information about the specific circumstances of the parent, in accordance with clause (iv) of subparagraph five of paragraph (b) of this subdivision. Such order may be retroactively modified upward, without a showing of change in circumstances.) Mr. A testified he doesn’t pay for rent, food or utilities. His testimony that he works 10-12 hours a day earning $70.00 a day, but could earn $200.00 a day, but that depends on whether he gets tips and, he doesn’t know when he earns $200.00 lacks credibility. That he operates vehicles, buys presents for the child, supports four children in his home but can’t afford more than $50.00 a week for the support of the child is not credible especially when he had access to $1,000.00 to “immediately” pay support owed. His claim that he “tries all the time” is undermined by a lack of supporting evidence such as exactly what companies he is applying to work or employment websites he may be using for an employment search. Mr. A offered no documents reflecting jobs for which he applied. Mr. A was referred to the Parent Support Program and there is no evidence he availed himself to their services. Mr. A testified that he is capable of working, has a work history and “nothing is preventing” him from working. That he said he receives public assistance does not negate the afore-stated testimony or this Court from finding he is capable of earning a full-time minimum wage income. See, Matter of Bukovinsky v. Bukovinsky 299 A.D.2d 786, 751 NYS2d 92 (3d Dept 2002) (It is well settled that the determination of one administrative agency is not binding on another agency considering the same question under a different statute. Therefore full time minimum wage income is imputed to Mr. A. See, Matter of Lindor v. Crowell 216 A.D.3d 1094, 189 NYS 3d 284 (2d Dept 2023) holding support magistrates have discretion to impute minimum wage income to a parent based on their ability to work full time and use that income to calculate support. See also, Remsen v. Remsen, 198 A.D.3d 658, 156 NYS 3D 44 (2d Dept 2021) (Support Magistrate providently exercised discretion in determining to impute annual income to the mother based upon her ability to work full time for minimum wage (see Matter of Drake v. Drake, 185 AD3d 1382, 1384, 127 NYS3d 661 [2020]; Matter of Rohme v. Burns, 92 AD3d 946, 947, 939 NYS2d 532 [2012]). The record established that, although the mother had worked only part time during the course of the parties’ marriage, the mother had a college degree. The mother offered no evidence to support her conclusory assertions that she was unable to work full time because she was needed to care for her elderly parents and the parties’ younger child, and because of undisclosed health limitations); See also, Moffre v. Moffre 29 A.D.3d 1149, 815 NYS 2d 315 (3d Dept 2006) (given plaintiff’s age and good health, the record could support an imputation based upon the applicable minimum wage). Disposition Therefore Ms. B’s income is based on the annualization of Petitioner’s 1 and Mr. A’s income is imputed minimum wage income. Both are reflected in the annexed Appendix A which yields a basic child support obligation of $356.52 weekly. Ms. B is the custodial party, whose pro rata share of the basic child support obligation is $260.26 weekly. Mr. A is the non-custodial party, whose pro rata share of the basic child support obligation is $96.26 weekly so child support shall be paid by Mr. A to Ms. B in the amount of $96.26 weekly commencing November 8, 2024 payable through the Support Collection Unit. Retroactive support is calculated from March 6, 2024 to November 8, 2024 totaling $3,410.35 minus any payments made pursuant to the temporary order of support. Mr. A’s pro rata share of the basic child support obligation is neither unjust nor inappropriate. Ms. B will continue health insurance for the child through her employer. Mr. A will enroll the child in health insurance if and when it is available and affordable. Unreimbursed health related expenses will be shared as follows; Ms. B 73 percent Mr. A 27 percent Family Ct Act §413(1)(c)(5) ORDERED, that pursuant to Family Ct Act §413 child support shall be paid by Mr. A to Ms. B in the amount of $96.26 weekly commencing November 8, 2024 payable through the Support Collection Unit. ORDERED, that pursuant to Family Court Act §440 (1)(a) Mr. A’s retroactive support is $3,410.35 minus any payments made pursuant to the temporary order of support. ORDERED, that pursuant to Family Court Act §413 (1)(c)(5) Ms. B will continue health insurance for the child and unreimbursed health related expenses will be shared as follows; Ms. B 73 percent and Mr. A 27 percent. Dated: November 4, 2024
