Opinion
2022–09821 Docket No. F–7224–17
08-09-2023
In the Matter of Sonely C. VILMONT, respondent, v. Frantz VILMONT, appellant.
Frantz Vilmont, Roosevelt, NY, appellant pro se.
Frantz Vilmont, Roosevelt, NY, appellant pro se.
FRANCESCA E. CONNOLLY, J.P., LARA J. GENOVESI, WILLIAM G. FORD, LILLIAN WAN, JJ.
DECISION & ORDER In a proceeding pursuant to Family Court Act article 4, the father appeals from an order of the Family Court, Nassau County (Colin Francis O'Donnell, J.), dated October 27, 2022. The order denied the father's objections to an order of the same court (Elizabeth A. Bloom, S.M.) dated September 20, 2022, which, after a hearing, and upon findings of fact dated September 20, 2022, denied his petition for a downward modification of his child support obligation.
ORDERED that the order dated October 27, 2022, is affirmed, without costs or disbursements.
The mother and the father have two children in common. In August 2017, the mother filed a petition for child support, and by order dated August 8, 2019, the Family Court directed the father to pay $417 per month in child support.
In February 2022, the father filed a petition seeking a downward modification of his child support obligation. In his petition, the father alleged that he had been out of work since March 2020, he had no income, and he was not receiving unemployment benefits. A hearing on the father's petition took place in August 2022.
By order dated September 20, 2022, the Support Magistrate denied the father's petition for a downward modification of his child support obligation. The father filed objections to the Support Magistrate's order. By order dated October 27, 2022, the Family Court denied the father's objections. The father 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 (see Family Ct Act § 451(3)(a) ; Matter of Patscot v. Fisco, 166 A.D.3d 981, 981, 86 N.Y.S.3d 735 ; Matter of Lindsay v. Lindsay–Lewis, 156 A.D.3d 642, 642, 64 N.Y.S.3d 564 ; Matter of Baumgardner v. Baumgardner, 126 A.D.3d 895, 896, 6 N.Y.S.3d 90 ).
"A parent's loss of employment may constitute a substantial change in circumstances" ( Matter of Rubenstein v. Rubenstein, 114 A.D.3d 798, 798, 980 N.Y.S.2d 531 ; see Matter of Nimely v. Corneh, 214 A.D.3d 812, 185 N.Y.S.3d 255 ; Matter of Hackett v. Hackett, 154 A.D.3d 751, 752, 61 N.Y.S.3d 682 ). " ‘However, the proper amount of support is determined not by the parent's current economic situation, but by the parent's assets and earning capacity’ " ( Matter of Durand v. Pierre–Louis, 205 A.D.3d 806, 807, 165 N.Y.S.3d 877, quoting Pathak v. Shukla, 164 A.D.3d 690, 691, 84 N.Y.S.3d 490 ). Thus, "[a] party seeking a downward modification of his or her child support obligation based upon a loss of employment has the burden of demonstrating that his or her employment was terminated through no fault of his or her own, and that he or she made diligent attempts to secure employment commensurate with his or her education, ability, and experience" ( Matter of Rubenstein v. Rubenstein, 114 A.D.3d at 798, 980 N.Y.S.2d 531 ; see Matter of Nimely v. Corneh, 214 A.D.3d at 812, 185 N.Y.S.3d 255 ; Matter of Jean–Baptiste v. Jean–Baptiste, 207 A.D.3d 630, 631, 170 N.Y.S.3d 474 ; Matter of Durand v. Pierre–Louis, 205 A.D.3d at 807, 165 N.Y.S.3d 877 ).
Here, the father failed to meet his burden of demonstrating that his employment was terminated through no fault of his own. He also failed to produce any evidence of his job search and to sufficiently prove that he made other efforts to procure equivalent employment. Accordingly, the Family Court properly denied the father's objections to the Support Magistrate's order (see Matter of Durand v. Pierre–Louis, 205 A.D.3d at 807, 165 N.Y.S.3d 877 ; Matter of Siouffi v. Siouffi, 186 A.D.3d 1789, 1792–1793, 131 N.Y.S.3d 406 ; Matter of Evans v. White, 173 A.D.3d 864, 865, 100 N.Y.S.3d 547 ; Pathak v. Shukla, 164 A.D.3d at 691, 84 N.Y.S.3d 490 ). The father's remaining contentions are without merit.
CONNOLLY, J.P., GENOVESI, FORD and WAN, JJ., concur.