SUPREME COURT OF THE STATE OF NEW YORK

Appellate Division, Fourth Judicial Department

363 

CAF 13-01058 

PRESENT: CENTRA, J.P., FAHEY, LINDLEY, SCONIERS, AND WHALEN, JJ. 

 

IN THE MATTER OF KARLA BOW, PETITIONER-APPELLANT, 

V MEMORANDUM AND ORDER

JOSEPH BOW, RESPONDENT-RESPONDENT. 

(APPEAL NO. 1.) 

 

KARLA BOW, PETITIONER-APPELLANT PRO SE. 

 

Appeal from an order of the Family Court, Niagara County (John F.

Batt, J.), entered August 20, 2012 in a proceeding pursuant to Family

Court Act article 4. The order denied petitioner’s written objections

to an order of the Support Magistrate on her petition to modify a

prior child support order.

It is hereby ORDERED that the order so appealed from is 

unanimously modified on the law by vacating the amount of respondent’s

annual income and the amount of child support awarded, and as modified

the order is affirmed without costs and the matter is remitted to

Family Court, Niagara County, for further proceedings in accordance

with the following Memorandum: In appeal No. 1, petitioner mother

appeals pro se from an order denying her written objections to the

order of the Support Magistrate on her petition to modify a prior

child support order. In appeal No. 2, the mother appeals pro se from

a corrected order that denied in part her written objections to the

Support Magistrate’s order on her petition alleging that respondent

father willfully violated a prior order of support.

With respect to appeal No. 1, we reject the mother’s contention

that Family Court erred in awarding arrears from October 29, 2010, the

date on which she petitioned for arrears and recalculation of child

support, rather than from several specified earlier dates (see Family

Ct Act § 449 [2]; Matter of Aiken v Aiken, 115 AD2d 919, 920; see also

Matter of Johna M.S. v Russell E.S., 10 NY3d 364, 366). Insofar as

the mother’s contention invokes equitable principles, we note that

Family Court lacks equity jurisdiction (see Matter of Brescia v Fitts,

56 NY2d 132, 139).

Next, the mother contends that the court erred in automatically

applying the biannual child support recalculation clause in the

parties’ divorce settlement, which was incorporated but not merged in

the judgment of divorce, based on 2011 income. Contrary to the

mother’s contention, the court did not automatically apply the

biannual child support recalculation clause. Rather, the record
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CAF 13-01058 

establishes that the mother requested a prospective recalculation in

her October 29, 2010 modification petition; the mother’s petition

stated that neither party was opposed to the implementation of the

biannual recalculation clause; the mother acknowledged that a

recalculation would be needed in order to calculate the parties’

current pro rata share of uninsured, unreimbursed medical expenses;

and, indeed, the father requested a prospective child support

recalculation based on 2011 income. The record thus establishes that

the court’s decision to recalculate child support based on 2011 income

was based on factors advanced by the parties, and we further conclude

that the court’s decision did not unfairly prejudice the mother

because she had adequate notice thereof and the opportunity to present

evidence (cf. Matter of Revet v Revet, 90 AD3d 1175, 1176-1177; see

generally Matter of Heintz v Heintz, 28 AD3d 1154, 1155). The mother

failed to preserve for our review her further contention that the

court had previously applied the recalculation clause in an

inconsistent manner that favored the father inasmuch as she failed to

raise that contention concerning the prior support recalculations in

her written objections to the Support Magistrate’s order (see Family

Ct Act § 439 [e]; Matter of White v Knapp, 66 AD3d 1358, 1359).

The mother also contends that the court erred in determining the

parties’ 2011 income by using the proof of income provided by the

parties in an inconsistent manner. We reject that contention. “A

court need not rely upon a party’s own account of his or her finances”

(Matter of Rohme v Burns, 92 AD3d 946, 947), and the court’s

determination whether to impute income to the obligor spouse “is given

great deference on appeal” (Khaimova v Mosheyev, 57 AD3d 737, 738). 

We further reject the mother’s contention that her income

determination is inaccurate due to lack of notice and her related

inability to present evidence because, as we previously concluded

herein, the mother had sufficient notice. Moreover, the mother had

the opportunity to list unreimbursed business expenses in her 2011

financial affidavit, and the court’s alleged failure to consider those

expenses is attributable to the mother’s failure to provide that

information to the court.

We agree with the mother, however, that the court erred in

determining the father’s 2011 income. It does not appear that the

father’s 2011 rental income was included in his gross income, and we

are unable on the record before us to determine the amount of the

father’s 2011 rental income (see McAuliffe v McAuliffe, 70 AD3d 1129,

1133). We therefore modify the order in appeal No. 1 by vacating the

amount of the father’s income as well as the amount of child support

awarded, and we remit the matter to Family Court to determine the

proper amount of the father’s income upon taking into account the

amount of his 2011 rental income, and to recalculate the father’s

resulting child support obligation. Contrary to the mother’s

contention, however, both rental income and rental losses are to be

considered by the court (see Matter of Petkovsek v Snyder, 255 AD2d

960, 960; see also Matter of Pringle v Pringle, 283 AD2d 966, 967). 

We have examined the mother’s remaining contentions in appeal No. 1

and conclude that they are without merit.
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CAF 13-01058 

With respect to appeal No. 2, we reject the mother’s contention

that the court erred in finding that the father did not willfully

violate a prior support order. The mother did not meet her burden of

proving that the father “failed to pay support as ordered” (Matter of

Powers v Powers, 86 NY2d 63, 69; see Family Ct Act § 454 [3]). The

receipts presented by the mother to the court relating to alleged

uninsured, unreimbursed medical expenses and expenses related to

medical appointments were both disorganized and confusing. According

to the father, the mother claimed reimbursement for medical expenses

paid in cash, but she had also withdrawn large amounts of cash from

the father’s health savings account. In addition, the mother failed

to record whether the expenses related to medical appointments were

incurred on a day when either of the children had a medical

appointment. Even assuming, arguendo, that the parties’ stipulation

was intended to cover expenses incurred in the children’s hometown of

Lockport, a point disputed by the parties, we conclude in any event

that the meal receipts claimed as expenses related to medical

appointments fall short of the totals sought by the mother in her

monthly summaries submitted to the court. Because the father did not

willfully violate the order, the decision not to award reasonable

counsel fees was properly within the court’s discretion (see § 438

[a], [b]; Matter of Nieves-Ford v Gordon, 47 AD3d 936, 937; Sampson v

Glazer, 109 AD2d 831, 832), and we note in any event that the mother

failed to present evidence of her attorney’s limited services

sufficient to provide an adequate basis for an award of reasonable

attorney’s fees. The court did not abuse its discretion in denying

the mother’s informal request, by way of a facsimile letter, for a

further extension in which to submit additional documents to perfect

her written objections. “It is well recognized that the [court’s]

power to control its calendar is a vital consideration in the

administration of the courts” (Headley v Noto, 22 NY2d 1, 4, rearg

denied 22 NY2d 973; see Matter of Bales, 93 AD2d 861, 862, lv

dismissed 60 NY2d 554, 60 NY2d 701). 

Lastly, we reject the mother’s request for reassignment to a

different court upon remittal, inasmuch as there was no showing of

bias or an abuse of discretion on the part of the court (see generally

CPLR 5522; William Kaufman Org. v Graham & James, 269 AD2d 171, 174).

Entered: May 9, 2014 Frances E. Cafarell

Clerk of the Court