Opinion
F-xxxxx-13/16G
09-06-2017
In the Matter of a Proceeding for Support Under Article 4 of the Family Court Act, L.M., Petitioner, v. B.M., Respondent.
For Petitioner: Kevin Gomez, Esq., Middletown, NY
For Petitioner: Kevin Gomez, Esq., Middletown, NY
On July 6, 2017, Petitioner-wife L.M. ("Petitioner"), filed an Objection to an Order of Dismissal entered by Support Magistrate Shira Atzmon dated June 19, 2017. Respondent-husband, B.M. ("Respondent") did not file a rebuttal. This Court, after a review of the court file, including the audio recordings, written findings and evidence presented, finds the objection to be without merit and is therefore denied for the reasons stated herein.
Petitioner filed this Objection pro se and without counsel, although she was represented by attorney, Kevin Gomez, Esq. during the proceedings.
Procedural History
The Petitioner is the legal wife of the Respondent, and they were married on May 26, 2000. On November 10, 2015, an order of support was entered by Support Magistrate Mary Neggie, which directed Respondent to pay Petitioner $100.00 weekly for spousal support. Thereafter, Petitioner filed a violation petition. As a result, on August 19, 2016, Support Magistrate Shira Atzmon entered a money judgment against Respondent for the arrears in the amount of $8,300.00, and directed Respondent to pay Petitioner $50.00 per week toward the arrears in addition to the spousal support obligation.
On September 7, 2016, Petitioner filed a petition to modify and increase the support order. In her petition, Petitioner states that there has been a substantial change in circumstances to seek a modification of the order. The basis of her modification is that she has experienced loss of income due to her declining health, she only receives social security benefits for income, she can no longer afford her utility expenses, and she is facing eviction proceedings as a result of her financial hardship. The Petitioner further states that Respondent failed to disclose his income "off the books," such as his personal injury award, and Respondent repeatedly fails to comply with the support order. The first appearance for the modification petition was scheduled on October 18, 2016, and issue was joined. This matter was subsequently adjourned several times, and the trial was held on June 19, 2017. Petitioner appeared with counsel, Kevin Gomez, Esq. Respondent did not have legal representation.
On June 19, 2017, Respondent was represented by 18B attorney, Adam Brown, Esq., in related violation petitions, which were withdrawn and dismissed without prejudice. Mr. Brown was relieved as Respondent's counsel at that time, and Respondent proceeded pro se in the matter regarding Petitioner's modification petition, which is the subject of this Objection.
On June 19, 2017, the court commenced the hearing for Petitioner's modification to the spousal support order. The court first inquired about the change in circumstances warranting a modification. Petitioner testified that she is seeking an increase because she is disabled. Petitioner further testified that she had an operation on her knee two or three years ago, and she works when she can. The court asked whether Petitioner's income had changed since the entering of the prior order and in response, Petitioner testified that her income has remained the same. Petitioner continues to work as a private cleaner and earns approximately $8,496.00 per year. Petitioner also testified that Respondent earns a lot of money and supports another woman that he lives with. To the contrary, Respondent testified that he works for a construction company as a contractor, and at that time he was not working full time because work was slow. Near the conclusion of the hearing, Petitioner changed her testimony and stated that she does not work, and requested an adjournment to submit documentation. The court declined Petitioner's request for an adjournment because in January 2017, this matter was marked final for the parties to submit their pay stubs, tax returns and financial affidavits, which they failed to provide.
Support Magistrate's Decision and Findings of Facts
On June 19, 2017, Support Magistrate Atzmon issued an Order of Dismissal of Petitioner's modification petition due to her failure to state a cause of action. The Support Magistrate determined that the Petitioner did not submit any evidence to support an increase in spousal support. The Support Magistrate reasoned that Petitioner "submitted testimony that she needed more support, but did not submit financial disclosure, and did not articulate the basis for her request for additional support, other than testifying that the husband 'earns a lot of money in construction and that he is supporting another woman'." The Support Magistrate also reasoned that Petitioner "acknowledged that her own income was substantially the same now as it was when the spousal support order was entered, so there was no reduction in her income that could be utilized as a basis to increase the husband's support obligation."
See, Findings of Facts dated June 19, 2017 at page 2.
Id.
Id.
Lastly, the Support Magistrate cited Family Court Act (FCA) § 451, which provides that a court may modify an order of support upon a showing of a substantial change in circumstances, and the court has the authority to modify an order where more than three years has elapsed or where there has been a change in either parties' gross income by fifteen (15) percent since the last order was entered. The Support Magistrate concluded, "the statute specifies that a reduction in income shall not be considered a ground for modification unless it was involuntary and the party has made diligent efforts to secure employment commensurate with his or her education, ability and experience." Therefore, "no cause of action has been articulated and the petition is dismissed without prejudice."
Id.
Id. at page 2. --------
Petitioner's Objection
Petitioner's Objection states in its entirety, "I, L.M., do not agree with the magistrate's decision who has dismissed all the violation petitions. Please review my case."
Discussion
This Court's review of support orders is a narrow one. It is the Support Magistrate, rather than the reviewing judge, who is present at the evidentiary hearing and is uniquely able to evaluate both the evidence and the credibility of the witness prior to making an order. Minerva R. v. Jorge L.A., 59 AD3d 243, 244 (1st Dep't 2009); Matter of Sosa v. Sosa, 13 AD3d 638 (2d Dep't 2004). "The greatest deference should be given to the factual findings of a Support Magistrate who is in the best position to assess the credibility of the witnesses and the evidence proffered." Kent v. Kent, 7 Misc 3d 1031(A) (Bronx Co. Family Ct. 2005); See also, Mahoney v. Goggins, 24 AD3d 668 (2d Dep't 2005); Columbia Co. Dep't of Social Services o/b/o William O. v. Richard O., 262 AD2d 913 (3d Dep't 1999); Matter of Niagara Co. DSS v. Randy M, 206 AD2d 878 (4th Dep't 1994). Therefore, as a general rule, the Support Magistrate's findings of fact should not be rejected unless they are contrary to the weight of the credible evidence or in error as a matter of law. Kent, supra; Matter of Weiner v. Weiner, 97 Misc 2d 920 (Monroe Co. Family Ct. 1979).
An application for modification of an order of support must allege a specific factual basis to support a prima facie case, and conclusory statements are insufficient. Smith v. Smith, 174 AD2d 818, 571 N.Y.S.2d 127 (3d Dep't 1991); O'Neill v. O'Neill, 109 AD2d 829, 486 N.Y.S.2d 351 (2d Dep't 1985). The application must contain specific financial data and, if based on a deteriorated physical condition, medical evidence should be submitted. Lee v. Lee, 244 AD2d 643, 663 N.Y.S.2d 708 (3d Dep't 1997). In the case Deluise v. Deluise, 760 N.Y.S.2d 130 (App. Div. 1st Dep't 2003), the appellate court determined that the upward modification of the husband's weekly maintenance obligation was proper where the wife proved there was a substantial change in circumstances because her health was deteriorating and the husband had the ability to pay for her increased needs.
Upon review of the court file and records, this Court finds that the Support Magistrate appropriately relied upon the parties' testimony and weighed the credibility of all parties in determining whether there is a change in circumstances in the parties' income that would support Petitioner's claim to increase the spousal support obligation. There is nothing in the record that indicates that the dismissal of Petitioner's upward modification petition was unjust or inappropriate.
The instant case is distinguishable from Deluise v. Deluise, supra. Here, Petitioner's health was an issue well before the underlying support order was issued. Petitioner testified that she had a disability due to an operation on her knee that occurred three (3) years ago, but the underlying support order was entered two (2) years ago in 2015, and was subsequently modified one (1) year ago in 2016 to include a money judgment and payments toward the judgment. The Petitioner's disability preceded the prior orders entered in 2015 and 2016. Therefore, Petitioner failed to state a change in circumstances, and the petition to modify the support order was properly dismissed without prejudice because Petitioner's disability is the same as it was when the court entered the original support order.
The Support Magistrate properly determined that pursuant to FCA §451(2)(a), a court may modify an order of support upon a showing of a substantial change in circumstances. Here, Petitioner did not prove that Respondent's income increased or that her income decreased to justify a modification. Petitioner failed to submit financial affidavits, tax returns and pay stubs to support her position. This Court finds Petitioner's testimony incredible because she first testified that she earns the same amount of income, but then changed her position at the end of the hearing, and testified that she does not work. Hence, there has not been a change in circumstances because the parties' income remained the same as the time of the original support order.
In her objection, Petitioner references that her violation petitions should not have been dismissed. This Court only addressed docket number F-xxxxx-13/16G, which is her modification petition and is subject to this Objection. Petitioner did not file an Objection to her violation petitions filed under docket numbers F-xxxxx-13/16B and F-xxxxx-13/16C. Nevertheless, the Support Magistrate did not err in dismissing Petitioner's violation petitions, F-xxxxx-13/16B and F-xxxxx-13/16C, because they were ultimately withdrawn by the Petitioner-wife, through her counsel, and dismissed without prejudice.
In conclusion, for the reasons stated, this Court will not disturb the Support Magistrate's findings and Order because the record does not demonstrate any abuse of discretion, nor mistake of fact or law, on behalf of the Support Magistrate.
WHEREFORE, it is hereby ORDERED, that Petitioner's objection is denied. Clerk to notify the parties, Support Magistrate and Support Collection Unit. Dated: September 6, 2017 Bronx, New York HON. LISA S. HEADLEY, A.J.F.C.