NEW YORK SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT
April 21, 2009
IN RE MYESHA M., PETITIONER-RESPONDENT,
OMEL MCL., RESPONDENT-APPELLANT.
Order, Family Court, Bronx County (Monica Drinane, J.), entered on or about May 21, 2007, which denied respondent's objections to the Support Magistrate's order directing respondent, inter alia, to pay child support of $131 per week for the two subject children, unanimously modified, on the law, to the extent of vacating the award of child support and remanding the matter for recalculation of respondent's child support obligation based upon his 2005 federal income tax return, taking into account his deductions for legitimate business expenses and self-employment taxes, and otherwise affirmed, without costs.
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
Tom, J.P., Moskowitz, Acosta, Freedman, JJ.
The Support Magistrate correctly found that respondent failed to establish an inability to work full time due to the need to care for a child not subject to the instant petition so as to warrant a reduction in his child support obligation. However, we find that the calculation of respondent's child support obligation, which was based on his 2005 federal tax return, failed to take into account deductions for legitimate business expenses. When expenses for the lease of business property and utilities are deducted, the gross income determined by the Support Magistrate is reduced by almost half. Moreover, while respondent was only able to deduct 50% of self-employment taxes paid in 2005 on his federal income tax return, the full amount of self-employment taxes paid in that year is deductible from his income for the purpose of calculating his child support obligation (Domestic Relations Law § 240[1-b][b][vii][H]; see Haas v Haas, 265 AD2d 887 , Carlin v Carlin, 217 AD2d 679 ). Finally, we note that the Support Magistrate made no factual finding that income was unreported or under-reported, and a review of the record provides no basis for imputing additional income to respondent (see Rosenberg v Rosenberg, 44 AD3d 1022 ; LaBombardi v LaBombardi, 220 AD2d 642 ).
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
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