
    William Klisivitch, Appellant, v Christa Klisivitch, Respondent.
    [753 NYS2d 866]
   —In an action for a divorce and ancillary relief, the plaintiff husband appeals, as limited by his brief, from so much of an order of the Supreme Court, Suffolk County (McNulty, J.), dated September 26, 2001, as, after a hearing, denied his application for an award of child support and other ancillary relief.

Ordered that the order is affirmed insofar as appealed from, without costs or disbursements.

A court may award child support based upon a party’s earning potential. However, such a determination must have some basis in law and fact (see Matter of Joseph v Dalmacy, 270 AD2d 489; Petek v Petek, 239 AD2d 327, 328). Here, there was no evidence adduced at the hearing, such as past earnings or educational background, to support the appellant’s contention that income should be imputed to the defendant wife (see Matter of Zhigina v Adzhiashvili, 292 AD2d 625; Petek v Petek, supra at 328; Matter of Zwick v Kulhan, 226 AD2d 734). Under the circumstances of this case, the Supreme Court providently exercised its discretion in refusing to fashion an award of child support based upon the defendant’s nonincome-producing assets (see Domestic Relations Law § 240 [1-b] [b] [5]; cf. Matter of Cody v Evans-Cody, 291 AD2d 27). Altman, J.P., Goldstein, McGinity and Mastro, JJ., concur.  