Money Available to Father from Relatives for Children’s College Expenses Should Have Been Considered in Allocating those Expenses between Mother and Father

The Second Department determined the Support Magistrate’s failure to take into account money received by the father from relatives for the children’s college required the case to be remitted to determine father’s and mother’s shares of the college expenses:

In determining a parent’s child support obligation, a court need not rely upon a party’s own account of his or her finances, but may impute income on the basis of the party’s past income or earning capacity …, or on the basis of “money, goods, or services provided by relatives and friends” (Family Ct Act § 413[1][b][5][iv][D]…). “A Support Magistrate is afforded considerable discretion in determining whether to impute income to a parent” …, and we accord deference to a support magistrate’s credibility determinations … . However, “a determination to impute income will be rejected where the amount imputed was not supported by the record, or the imputation was an improvident exercise of discretion” … .

While the record supports the conclusion that the mother should share in the college expenses of the subject children, the Support Magistrate improvidently exercised her discretion by failing to impute additional income to the father for money he received from his family for the subject children’s college expenses. The father’s testimony established that the funds he received from his family to pay for the subject children’s college expenses were not loans that he was obligated to repay. Thus, the mother’s objections to so much of the order … as directed her to pay the father the principal sum of $28,210.02 in arrears for college expenses and to pay for 67% of the subject children’s future college expenses should have been granted… .  Matter of Kiernan v Martin, 2013 NY Slip Op 05527, 2nd Dept 7-31-13