Kellogg v. Kellogg

—Appeal from an order of Family Court, Steuben County (Latham, J.), entered May 4, 2001, which, upon objections filed by respondent, modified the order of the Hearing Examiner. It is hereby ordered that the order so appealed from be and the same hereby is affirmed without costs. Memorandum: In this support proceeding pursuant to article 4 of the Family Ct Act, petitioner appeals from an order of Family Court that, upon objections filed by respondent, modified the order of the Hearing Examiner. Contrary to petitioner’s contention, the court was empowered to make its own findings of fact (see Family Ct Act § 439 [e] [ii]; Matter of Eberhard v Brechue, 269 AD2d 852, 853; Matter of Hughes v Wasik, 224 AD2d 982) and to use current income figures for a tax year not completed to determine respondent’s child support obligation (see Matter of Monroe County Dept. of Social Servs. v Mercado, 241 AD2d 948; Matter of Paul v Rodems, 226 AD2d 1047, 1048). We conclude that the record supports the court’s determination that the income of respondent in the year 2001 would be less than his income in the year 2000. As the dissent notes, the court relied in part upon a letter written by respondent’s supervisor indicating that respondent had worked 800 hours of overtime in the year 2000 because of “unique circumstances.” (At 998.) The letter was obtained by respondent at the request of the Hearing Examiner and was received in evidence without objection by petitioner. In testifying before the Hearing Examiner, respondent explained what those “unique circumstances” were and provided the basis for determining his “normal” overtime. Contrary to the conclusion of the dissent, the court properly relied in part upon the letter in determining respondent’s income for the year 2001. “Evidence, though not competent, received without objection may be relied upon to [997] establish a fact in controversy” (Ford v Snook, 205 App Div 194, 198, affd 240 NY 624; see Matter of MacDonald, 40 NY2d 995, 996, rearg dismissed 42 NY2d 1102; Matter of Findlay, 253 NY 1, 11; Brooklyn Union Gas Co. v Arrao, 100 AD2d 949). We further conclude that the court did not abuse its discretion in ordering respondent to pay his pro rata share of the college expenses of the parties’ daughter and in determining that he is entitled to a credit for the child support paid during the period that the daughter is away at college (see Matter of Crippen v Bender, 294 AD2d 890; Matter of Houck v Houck, 246 AD2d 905, 906). Although the dissent concludes that the court acted arbitrarily in determining the amount of the credit and in granting respondent the credit against the college expenses rather than against his child support obligation, that issue was not raised on appeal. Furthermore, although the dissent further concludes that the court erred in granting respondent a credit for the entire fall 2000 semester, it granted that credit only because it ordered respondent to share in the college expenses for that semester. All concur except Kehoe, J., who dissents and votes to reverse in the following memorandum.