A parent’s decision to take one step back to later take several steps forward will not prejudice the child while the plan plays out.

So held the Appellate Division, Second Department, in its July 2, 2014 decision in Bustamante v. Donawa, upholding the order of Kings County Family Court Judge Michael L. Katz. That order, in turn, denied the father’s objections to an order of Support Magistrate Nicholas Palos that imputed income to the father when granting a mother’s petition for an upward modification of the father’s child support obligation.

The Support Magistrate based the increase in the father’s support obligation from that contained in a 2008 order on the father’s 2011 annual income of $54,342.00. That was earned by the father from a former occupation as a Traffic Device Maintainer. The father argued that the Magistrate should have used his current annual income of $31,756.40, as reflected in his most recent pay stub arising out of his current occupation as an Emergency Medical Technician.

The Second Department held the father’s contention was without merit. The Court noted that a Support Magistrate may impute income based on the party’s past income or demonstrated earning potential. The Magistrate is afforded considerable discretion and that determination may properly be based upon a parent’s prior employment experience.

Here, the Court held it was appropriate to impute the higher past income to the father where he had voluntarily left his employment.

While a parent is entitled to attempt to improve his vocation, his children should not be expected to subsidize his decision.

Here, there was no discussion of how the mother met the changed circumstances threshold needed to obtain an upward modification of support. Neither was there any suggestion that the father was motivated by anything other than a desire to get ahead.

However, the decision invites the question whether the father will be entitled to some credit or leeway if and when his attempt to better himself pans out. If and when the father’s income exceeds what he would have earned as a Traffic Device Maintainer, will the mother be entitled to still another increase?

Both parties represented themselves.

In a February 13, 2013 decision. the Second Department in Braun v. Abenanti directed a father to pay his child’s orthodontist directly and also directed that the mother’s petition for an upward modification of child support be granted.

Doing so, the Second Department reversed Family Court, Suffolk County Judge Richard Hoffmann, who in turn had denied the mother’s objections to an order of Support Magistrate Isabel Buse. The Magistrate’s order, after a hearing, granted the mother’s petition to enforce a 2001 support order only to the extent of directing the father to reimburse the mother the $20 she had paid to the orthodontist. Magistrate Buse also denied the mother’s petition for an upward modification of that decade-old support order.

As for the orthodontia, the 2001 order directed the father to pay 100% of “future reasonable health care expenses not covered by insurance.” The child had orthodontia expenses of $1,329 that were not covered by insurance, of which the mother could only afford to pay $20.

The Second Department acknowledged that as the mother demonstrated that she paid $20 of the child’s unreimbursed orthodontia expenses, the Family Court’s award of only $20 to the mother was properly limited to “those sums for which the mother submitted proof of actual payment to the third-party medical providers.”

Continue Reading Father Directed to Pay Orthodontist Directly; and Mother Entitled to Upward Modification