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IN THE MATTER OF CLEMENCIA TALERO, respondent, v. ALBERT TALERO, appellant.

DECISION ORDER

ORDERED that the appeal from the order dated March 28, 2001, is dismissed, without costs or disbursements, as that order was superseded by the order dated May 20, 2002; and it is further,

ORDERED that the order dated May 20, 2002, is affirmed; and it is further,

ORDERED that one bill of costs is awarded to the mother.

The Family Court properly sustained the Hearing Examiner's determination directing the father to pay child support in the sum of $608 per week. Contrary to the father's contentions, the Hearing Examiner properly found that his income was greater than that indicated in his most recent income tax return ( see Matter of Graves v. Smith, 284 A.D.2d 332, 333; Matter of Mobley-Jennings v. Dare, 226 A.D.2d 730; see also Bittner v. Bittner, 296 A.D.2d 516; Matter of Gallager v. Flaherty, 220 A.D.2d 867). A court is not required to rely upon a party's own account of his or her finances, and may impute income based upon that party's past income or demonstrated earning potential ( see Cohen v. Cohen, 294 A.D.2d 184; Matter of Graves v. Smith, supra). Here, the Hearing Examiner properly imputed income to the father based on his past and present earning potential ( see Matter of Kellogg v. Kellogg, 300 A.D.2d 996; Matter of Monroe County Dept. of Social Servs. v. Mercado, 241 A.D.2d 948).

The father's remaining contentions either are unpreserved for appellate review or without merit.

RITTER, J.P., FLORIO, S. MILLER and H. MILLER, JJ., concur.

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IN THE MATTER OF TALERO v. TALERO
(Nov 17, 2003)