Call For Free Consultation 845-610-6595 845-610-6595

Downward Modification of Child Support

77 A.D.3d 740Supreme Court, Appellate Division, Second Department, New York.
In the Matter of Stella ARANOVA, respondent,v.Dimitriy ARANOV, appellant. In the Matter of Dimitriy Aranov, appellant,v.Stella Aranova, respondent.Oct. 12, 2010.
Synopsis Background: In related child support proceedings, the father appealed from an order of the Family Court, Queens County, Richroath, J., which denied his objections to an order of the same court, Kirshblum, S.M., which dismissed his petition for a downward modification of his child support obligation.
[Holding:] The Supreme Court, Appellate Division, held that the father failed to establish a substantial change in circumstances warranting a downward modification of his support obligation. Affirmed.

West Headnotes (3)[1] Child Support
Financial condition in general
Child Support Financial condition in general
In proceedings on a petition for a downward modification of a child support obligation, substantial deterioration in the financial situation of the party seeking modification between the time of the order and the time a modification is sought may, in some instances, constitute a sufficient change in circumstances to warrant a downward modification. McKinney’s DRL § 236(B)(9)(b).

3 Cases that cite this headnote

 

[2] Child Support
Income
Although a petition for downward modification of child support may be granted based on a parent’s loss of employment due to an injury or illness, it may be denied when the parent still has the ability to provide support through some other type of employment; thus, a party seeking modification on the basis of loss of employment due to illness must show that he or she has made a good faith effort to obtain other employment commensurate with his or her abilities or qualifications. McKinney’s DRL § 236(B)(9)(b).

1 Cases that cite this headnote

 

[3] Child Support
Mental condition Child Support
Voluntary unemployment or underemployment Child Support
Miscellaneous payments received
Father failed to establish a substantial change in circumstances warranting a downward modification of his child support obligation; although father testified that he was disabled due to a mental health condition and that he was unable to work due to his illness, and there was evidence that he was receiving Social Security disability benefits, he was working for a period of time during which he alleged that he was disabled, and the record indicated that he failed to set aside money from a legal settlement for the support of the children.

4 Cases that cite this headnote

 

Attorneys and Law Firms**126 Dimitriy Aranov, Kew Gardens, N.Y., appellant pro se.
A. GAIL PRUDENTI, P.J., DANIEL D. ANGIOLILLO, ARIEL E. BELEN, and SANDRA L. SGROI, JJ.

Opinion*740 In related child support proceedings pursuant to Family Court Act article 4, the father appeals from an order of the Family Court, Queens County (Richroath, J.), dated July 1, 2009, which denied his objections to an order of the same court (Kirshblum, S.M.), dated March 27, 2009, which, after a hearing, dismissed his petition for a downward modification of his child support obligation.

ORDERED that the order is affirmed, without costs or disbursements.

[1] [2] The Family Court may modify a prior order or judgment of child support or maintenance payments upon a showing of a “substantial change in circumstances” (Domestic Relations Law § 236[B][9][b]; see Matter of Sannuto v. Sannuto, 21 A.D.3d 901, 800 N.Y.S.2d 601; Klapper v. Klapper, 204 A.D.2d 518, 611 N.Y.S.2d 657; Dowd v. Dowd, 178 A.D.2d 330, 577 N.Y.S.2d 395). The party seeking to modify such child support provisions has the burden of establishing that a modification is warranted (see Matter of Mandelowitz v. Bodden, 68 A.D.3d 871, 890 N.Y.S.2d 634; Matter of Marrale v. Marrale, 44 A.D.3d 773, 843 N.Y.S.2d 407). A substantial deterioration in the financial situation of the party seeking modification between the time of the order and the time a modification is sought may, in some instances, *741 constitute a sufficient change in circumstances to warrant a downward modification (see Matter of Mandelowitz v. Bodden, 68 A.D.3d at 874, 890 N.Y.S.2d 634; Matter of Talty v. Talty, 42 A.D.3d 546, 840 N.Y.S.2d 114). Nevertheless, although a petition for downward modification of child support may be granted based on a parent’s loss of employment due to an injury or illness, it may be denied when the parent still has the ability to provide support through some other type of employment (see Matter of Marrale v. Marrale, 44 A.D.3d at 775, 843 N.Y.S.2d 407; Matter of McCarthy v. McCarthy, 2 A.D.3d 735, 769 N.Y.S.2d 590; Matter of Madura v. Nass, 304 A.D.2d 579, 756 N.Y.S.2d 890). Thus, a party seeking modification on the basis of loss of employment due to illness must show that he or she has made a good faith effort to obtain other employment commensurate with his or her abilities or qualifications (see Matter of Marrale v. Marrale, 44 A.D.3d at 775, 843 N.Y.S.2d 407; Matter of McCarthy v. McCarthy, 2 A.D.3d 735, 769 N.Y.S.2d 590; Matter of Madura v. Nass, 304 A.D.2d 579, 756 N.Y.S.2d 890). On appeal, credibility determinations of the hearing court are entitled to great weight and will not be disturbed if supported by the record (see Matter of Piernick v. Nazinitsky, 48 A.D.3d 690, 850 N.Y.S.2d 914; Matter of Wilkins v. Wilkins, 47 A.D.3d 823, 850 N.Y.S.2d 538; Matter of Barrett v. Pickett, 5 A.D.3d 591, 772 N.Y.S.2d 860).

[3] Here, the father failed to establish a substantial change in circumstances warranting a downward modification of his **127 support obligation. He testified that he was disabled due to a mental health condition and that he was unable to work due to his illness. However, the father was working for a period of time during which he alleged that he was disabled. The record supports the Support Magistrate’s determination that the father failed to present credible evidence at the hearing that his symptoms or condition at the time of the petition and hearing prevented him from working. Under the circumstances of this case and, contrary to the father’s contention, the evidence that he was receiving Social Security disability benefits did not, by itself, preclude the Family Court from finding that he was capable of working (see Matter of Marrale v. Marrale, 44 A.D.3d at 775, 843 N.Y.S.2d 407; Matter of Bukovinsky v. Bukovinsky, 299 A.D.2d 786, 751 N.Y.S.2d 92). Further, there is support in the record for the Support Magistrate’s finding that the father failed to set aside money from a legal settlement for the support of the children. Accordingly, the Family Court did not err in denying the father’s objections to the order of the Support Magistrate finding that the father failed to establish a substantial change in circumstances based upon his illness and loss of income that would warrant the relief sought in the petition (see Matter of Mandelowitz v. Bodden, 68 A.D.3d at 874–875, 890 N.Y.S.2d 634; Matter of Perrego v. Perrego, 63 A.D.3d 1072, 884 N.Y.S.2d 70; Matter of Piernick v. Nazinitsky, 48 A.D.3d at 690, 850 N.Y.S.2d 914; Matter of Marrale v. *742 Marrale, 44 A.D.3d at 775, 843 N.Y.S.2d 407; Matter of Bukovinsky v. Bukovinsky, 299 A.D.2d at 787–788, 751 N.Y.S.2d 92).

Parallel Citations77 A.D.3d 740, 909 N.Y.S.2d 125, 2010 N.Y. Slip Op. 07333
End of Document © 2013 Thomson Reuters. No claim to original U.S. Government Works.