Opinion
No. 2023-01219 Docket Nos. F-21051-13/22C F-21051/22E F-21051-13/22F
05-29-2024
In the Matter of Jose Enrique Camacho, respondent, v. Tina Marie Leggio, appellant. (Proceeding No. 1) In the Matter of Tina Marie Leggio, appellant, v. Jose Enrique Camacho, respondent. (Proceeding No. 2)
Salvatore C. Adamo, New York, NY, for appellant. Arza Rayches Feldman, Manhasset, NY, for respondent.
Salvatore C. Adamo, New York, NY, for appellant.
Arza Rayches Feldman, Manhasset, NY, for respondent.
HECTOR D. LASALLE, P.J., LINDA CHRISTOPHER, WILLIAM G. FORD, LAURENCE L. LOVE, JJ.
DECISION & ORDER
In related proceedings pursuant to Family Court Act article 4, the mother appeals from an order of the Family Court, Suffolk County (Paul M. Hensley, J.), dated December 28, 2022. The order, insofar as appealed from, denied the mother's objections to an order of the same court (Darlene Jorif-Mangane, S.M.) dated October 14, 2022, which, after a hearing, granted the father's petition for a downward modification of his child support obligation and, in effect, denied the mother's petition alleging that the father willfully violated an order of support.
ORDERED that the order dated December 28, 2022, is affirmed insofar as appealed from, without costs or disbursements.
The parties are the parents of five children. On December 18, 2021, the father sustained injuries to his shoulder in an accident. On February 17, 2022, the father filed a petition for a downward modification of his child support obligation as set forth in an order of support dated July 14, 2014. On May 13, 2022, the mother filed a petition alleging that the father willfully violated the order of support. After a hearing, in an order dated October 14, 2022, the Support Magistrate granted the father's petition and, in effect, denied the mother's petition. The Support Magistrate found that there had been a substantial change in circumstances warranting a downward modification of the father's child support obligation and reduced the father's child support obligation to $0 per week. The mother filed objections, inter alia, to the Support Magistrate's order. In an order dated December 28, 2022, the Family Court, among other things, denied the mother's objections to the Support Magistrate's order. The mother appeals.
"The party seeking modification of an order of child support has the burden of establishing the existence of a substantial change in circumstances warranting the modification" (Matter of White v Holder, 174 A.D.3d 635, 636; see Matter of Gerety v Gerety, 203 A.D.3d 827, 828; Matter of Baumgardner v Baumgardner, 126 A.D.3d 895, 896-897). Here, contrary to the mother's contention, the record supports the Support Magistrate's determination that a substantial change in circumstances had occurred, warranting a downward modification of the father's child support obligation (see Family Ct Act § 451[3][a]; Matter of White v Holder, 174 A.D.3d at 636; Matter of Suyunov v Tarashchansky, 98 A.D.3d 744, 745). Evidence was adduced at the hearing demonstrating that the father had been unable to work and that his sole sources of income were Supplemental Nutrition Assistance Program benefits and possibly, in the future, Supplemental Security Income. Accordingly, the Family Court properly denied the mother's objections to so much of the Support Magistrate's order as granted the father's petition for a downward modification of his child support obligation (see Matter of White v Holder, 174 A.D.3d at 636; Matter of Suyunov v Tarashchansky, 98 A.D.3d at 745).
In addition, the Family Court properly denied the mother's objections to so much of the Support Magistrate's order as, in effect, denied her petition alleging that the father willfully violated the order of support. "'Proof of failure to pay child support as ordered constitutes prima facie evidence of willful violation of an order of support'" (Matter of Santman v Schonfeldt, 209 A.D.3d 742, 743, quoting Matter of Gorsky v Kessler, 79 A.D.3d 746, 746; see Matter of Pacheco v Pacheco, 163 A.D.3d 576, 576-577). Here, the father conceded that he stopped paying child support after his accident left him unable to work. The burden then shifted to the father to offer some competent, credible evidence that his failure to pay child support in accordance with the order of support was not willful (see Matter of Santman v Schonfeldt, 209 A.D.3d at 743; Matter of Pacheco v Pacheco, 163 A.D.3d at 576-577). The father submitted sufficient medical evidence to substantiate his assertion that he was unable to work due to medical impairments. Under the circumstances of this case, the father's showing was sufficient to establish that his failure to pay child support was not willful.
The mother's remaining contention is without merit.
LASALLE, P.J., CHRISTOPHER, FORD and LOVE, JJ., concur.