Opinion
2011-10-18
In the Matter of Debbie LEVINE–SEIDMAN, respondent,v.Kurt SEIDMAN, appellant.
Wand, Powers & Goody, LLP, Huntington, N.Y. (Jennifer H. Goody of counsel), for appellant.Christine Malafi, County Attorney, Central Islip, N.Y. (Jeffrey Dayton of counsel), for respondent.
Wand, Powers & Goody, LLP, Huntington, N.Y. (Jennifer H. Goody of counsel), for appellant.Christine Malafi, County Attorney, Central Islip, N.Y. (Jeffrey Dayton of counsel), for respondent.
In a child support proceeding pursuant to Family Court Act article 4, the father appeals from an order of the Family Court, Suffolk County (Hoffman, J.), dated January 14, 2011, which denied his objections to an order of the same court (Livrieri, S.M.), dated September 28, 2010, which, after a hearing, inter alia, denied his petition for a downward modification of his child support obligation set forth in the judgment of divorce dated February 18, 2005, and adopted by the Family Court, Suffolk County by order dated October 25, 2005, and determined that he willfully failed to pay his child support obligation.
ORDERED that the order is affirmed, with costs.
Although the Family Court found that the father failed to show an “unanticipated” and “unforeseen” change in circumstances warranting a downward modification of his child support obligation, because the father's obligation was not contained in a stipulation of settlement that had been incorporated but not merged into a judgment of divorce, the standard that should have been applied is “a substantial change in circumstances” ( Matter of Mandelowitz v. Bodden, 68 A.D.3d 871, 874, 890 N.Y.S.2d 634 [internal quotation marks omitted]; see Matter of Marrale v. Marrale, 44 A.D.3d 773, 774, 843 N.Y.S.2d 407; cf.
Matter of Boden v. Boden, 42 N.Y.2d 210, 397 N.Y.S.2d 701, 366 N.E.2d 791). “In determining whether there has been a substantial change in circumstances, the change is measured by comparing the payor's financial situation at the time of the application for a downward modification with that at the time of the order sought to be modified” ( Matter of Mandelowitz v. Bodden, 68 A.D.3d at 874, 890 N.Y.S.2d 634 [internal quotation marks omitted]; see Matter of Talty v. Talty, 42 A.D.3d 546, 547, 840 N.Y.S.2d 114). Moreover, “[a] parent's child support obligation is not necessarily determined by his or her current financial condition, but rather by his or her ability to provide support” ( Matter of Talty v. Talty, 42 A.D.3d at 547, 840 N.Y.S.2d 114 [internal quotation marks omitted] ).
Here, despite the father's testimony that the current economic downturn severely affected his earnings, and despite the fact that his income as a stock broker fluctuated yearly, depending on stock sales, he did not show a substantial change in average income since the entry of the divorce judgment which established his support obligation. Accordingly, on this record, the father failed to establish a substantial change in circumstances sufficient to entitle him to a downward modification of his support obligation ( see Matter of Marrale v. Marrale, 44 A.D.3d 773, 843 N.Y.S.2d 407; Matter of Talty v. Talty, 42 A.D.3d at 547, 840 N.Y.S.2d 114; see also Taylor v. Taylor, 83 A.D.3d 815, 920 N.Y.S.2d 419; Sofia v. Sofia, 162 A.D.2d 594, 556 N.Y.S.2d 778). Moreover, he failed to show that his ability to provide support had changed during that time ( see Basile v. Wiggs, 82 A.D.3d 921, 920 N.Y.S.2d 103; Matter of Talty v. Talty, 42 A.D.3d at 547, 840 N.Y.S.2d 114). Accordingly, the Family Court properly denied the father's objections to the Support Magistrate's finding that the father was not entitled to a downward modification of his child support obligation.
The Family Court also properly denied the father's objections to the Support Magistrate's determination that the father willfully failed to comply with his support obligation. His failure to pay support constituted prima facie evidence of a willful violation of the support obligation contained in the divorce judgment ( see Family Ct. Act § 454[3][a]; Matter of Powers v. Powers, 86 N.Y.2d 63, 69, 629 N.Y.S.2d 984, 653 N.E.2d 1154; Matter of Barrett v. Barrett, 82 A.D.3d 974, 975–976, 919 N.Y.S.2d 66). This prima facie showing shifted the burden to the father to come forward with competent, credible evidence that his failure to pay support in accordance with the terms of the divorce judgment was not willful ( see Matter of Powers v. Powers, 86 N.Y.2d at 69–70, 629 N.Y.S.2d 984, 653 N.E.2d 1154). He failed to satisfy his burden ( id.; see Matter of Department of Social Servs. of Fulton County v. Hillock, 96 A.D.2d 625, 464 N.Y.S.2d 877; cf. Matter of Brennan v. Burger, 63 A.D.3d 922, 923, 882 N.Y.S.2d 181).
The father's remaining contentions are either without merit or improperly raised for the first time on appeal.