Appeals from two orders of the Family Court of Fulton County (Skoda, J.), entered June 24, 2011 and January 31, 2012, which, among other things, dismissed respondent’s application, in four proceedings pursuant to Family Ct Act article 4, to modify a prior order of support.
Petitioner (hereinafter the mother) and respondent (hereinafter the father) are the parents of a son (born in 1991) and a daughter (born in 1993). The parties’ 1997 divorce decree incorporated a stipulation that set forth, among other things, the father’s child support obligations and the parties’ obligations to contribute to the children’s college expenses. In 2010, the mother filed petitions seeking modification of a prior support order and alleging that the father violated an order by, among other things, failing to contribute to college expenses. The father answered, asserting the defense of parental alienation, and filed petitions alleging a violation of a prior court order and seeking to have his child support obligation suspended. Family Court first held a hearing on the father’s defense and determined that the mother did not engage in parental alienation. Following a hearing addressing the remaining aspects of the proceedings, the court, among other things, dismissed the mother’s petition seeking modification of support, but ordered the father to pay 82% of the children’s college expenses. The father appeals.1
Family Court did not err in dismissing the father’s parental
While the father regularly called the children and sent them messages at the time of the hearing and for several years prior, he was absent from their lives for at least two years, has not made much effort to schedule or encourage visitation, and did not file a petition to enforce his visitation despite his claims that the mother has interfered for several years. The children both testified that the mother encouraged them to call the father and acknowledge special occasions, but they often chose not to do so. The daughter rarely answered her phone when the father called and rarely responded to his messages. The mother may have told the children to call the father and contacted him to have a visit when she was near his home, but she mainly left it up to the children to contact him and arrange visitation. Considering all of the testimony, it appears that the children’s alienation from the father resulted from a “lack of effort by all concerned,” including the father and both children as well as the mother (Matter of Crouse v Crouse, 53 AD3d at 752). Accordingly, the father did not establish his defense and he was not entitled to a suspension of his child support.
Family Court properly determined that the father must pay his proportionate share of the children’s college expenses pursuant to the parties’ stipulation of settlement. The stipulation is a contract between the parties and must be interpreted by enforcing its plain language if unambiguous, and otherwise by discern
The question then becomes whether Family Court correctly calculated the parties’ respective obligations for the college expenses. In the oral stipulation, the mother’s counsel stated that the parties would pay such expenses “based upon their then existing respective incomes.” In a later clarification during the stipulation, however, the father’s counsel specified that “both parties are going to contribute to the college expenses as their incomes allow,” which the mother’s counsel further clarified as “[biased upon the then existing financial ability to pay.” Unfortunately, these so-called clarifications created confusion, because “existing respective incomes” does not necessarily mean the same thing as “as their incomes allow” or “existing financial ability to pay.” We resolve this ambiguity by requiring the parties to pay college expenses based on their financial ability to pay, as this was the last clarification placed on the record during the stipulation, and the two clarifications evince the parties’ intentions to contribute based on their ability to pay, which takes into account more than just gross income.
In determining child support or related expenses, a court may impute income to a parent based on that party’s failure to seek
Here, Family Court accepted the mother’s income as $15,000, without imputing any income to her. She testified that she earned approximately that amount at her part-time job as a tax preparer, but acknowledged that she has a Bachelor’s degree in accounting and could work full time, yet chooses to work reduced hours out of loyalty to her employer. Because we are basing the college expenses on the parties’ ability to pay rather than their actual income, we will impute income to the mother based on her underemployment and ability to earn more (compare Matter of Disidoro v Disidoro, 81 AD3d 1228, 1230 [2011], lv denied 17 NY3d 705 [2011]). Using the mother’s testimony that she earned approximately $15,000 working full time from January through April and two days per week for the remainder of the year, we can extrapolate a full-time salary for her at the same earning rate, resulting in an imputed income of $25,000.3
Family Court found that the record did not include a current financial affidavit of the father or other proof to confirm his income, leading the court to rely on his $68,112 income listed in a 2002 order. But the father testified that his annual income was in the “ballpark” of $110,000. The father contends that this proof of his income was only admitted into evidence at a hearing that was limited to addressing the defense of parental alienation, and not the hearing addressing the support petitions generally, leaving no proof of his income. As these proceedings were bifurcated to deal with a potentially dispositive defense prior to reaching the merits of most of the petitions, it seems merely a matter of semantics to describe the testimony as part of two separate hearings as opposed to just one hearing held
Peters, PJ., Stein and Spain, JJ., concur. Ordered that the appeal from the order entered June 24, 2011 is dismissed, without costs. Ordered that the order entered January 31, 2012 is modified, on the law and the facts, without costs, by reducing respondent’s pro rata share of the children’s college expenses to 81.5%, and, as so modified, affirmed.
1.
Although the father’s appeal from the June 2011 nonfinal order must be dismissed as that order is not appealable as of right (see Family Ct Act § 1112 [a]), his appeal from the January 2012 final order brings up for review the issues raised on appeal from the nonfinal order (see Matter of Nathan O. v Jennifer P., 88 AD3d 1125, 1126 n [2011], appeal dismissed and, lv denied 18 NY3d 904 [2012]).
2.
The father mistakenly attempts to rely on a provision from a 2005 order that provides him with a basis to seek modification of support if he “is not receiving meaningful expanded unsupervised visitation with the children through no fault of his own.” He repeatedly omits the remainder of that sentence, which states “as per [the counselor who was overseeing therapeutic visitation].” Because the record does not contain any recommendation of the counselor regarding expanded visitation, and because the father bears at least some fault for the lack of visitation, this provision is not helpful to him.
4.
Despite the large changes in the income considered for each party, the overall percentage attributable to each is only .5% different than that found by Family Court.
3.
We used a calculation of $15,000 = (X x 4) + (X x 8 x 2/5), with X representing the mother’s monthly earnings, the 4 and 8 representing the number of months and the 2/5 representing a discount for her working only two days per week during the eight months. Under this equation, X = $2,083.33. Multiplying that amount times 12 months yields $24,999.96. We will thus impute an annual income of $25,000.