Opinion
2014-07903, (Docket No. F-16081-12)
05-06-2015
In the Matter of John ROLKO, Jr., appellant, v. Gina INTINI, respondent.
The Guttman Law Group, LLP, Melville, N.Y. (Robin N. Guttman of counsel), for appellant.
The Guttman Law Group, LLP, Melville, N.Y. (Robin N. Guttman of counsel), for appellant.
L. PRISCILLA HALL, J.P., SANDRA L. SGROI, ROBERT J. MILLER, and SYLVIA O. HINDS–RADIX, JJ.
Opinion Appeal from an order of the Family Court, Suffolk County (Bernard Cheng, J.), dated July 15, 2014. The order denied the father's objections to an order of that court (Aletha Fields, S.M.), dated April 30, 2014, which, after a hearing, dismissed his petition for a downward modification of his child support obligation, with prejudice.
ORDERED that the order dated July 15, 2014, is modified, on the law, by deleting the provision thereof, in effect, denying the father's objection to the words “with prejudice” in the order dated April 30, 2014, and substituting therefor a provision granting that objection and thereupon substituting the words “without prejudice” for the words “with prejudice” in the order dated April 30, 2014; as so modified, the order dated July 15, 2014, is affirmed, without costs or disbursements.A “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 Baumgardner v. Baumgardner, 126 A.D.3d 895, 896–897, 6 N.Y.S.3d 90 ; see Matter of Rubenstein v. Rubenstein, 114 A.D.3d 798, 798, 980 N.Y.S.2d 531 ; Matter of Suyunov v. Tarashchansky, 98 A.D.3d 744, 745, 950 N.Y.S.2d 399 ). “A parent's loss of employment may constitute a substantial change in circumstances” (Matter of Rubenstein v. Rubenstein, 114 A.D.3d at 798, 980 N.Y.S.2d 531 ; see Matter of Suyunov v. Tarashchansky, 98 A.D.3d at 745, 950 N.Y.S.2d 399 ; Matter of Ceballos v. Castillo, 85 A.D.3d 1161, 1162, 926 N.Y.S.2d 142 ). However, “[t]he proper amount of support to be paid ... is determined not by the parent's current economic situation, but by the parent's assets and earning capacity” (Matter of Muselevichus v. Muselevichus, 40 A.D.3d 997, 998–999, 836 N.Y.S.2d 661 ; see Matter of Baumgardner v. Baumgardner, 126 A.D.3d at 896–897, 6 N.Y.S.3d 90 ; Ashmore v. Ashmore, 114 A.D.3d 712, 713, 981 N.Y.S.2d 427 ; Matter of Solis v. Marmolejos, 50 A.D.3d 691, 692, 855 N.Y.S.2d 584 ). Thus, a parent seeking downward modification of a child support obligation must submit competent proof that “the termination occurred through no fault of the parent and the parent has diligently sought re-employment commensurate with his or her earning capacity” (Matter of Riendeau v. Riendeau, 95 A.D.3d 891, 892, 943 N.Y.S.2d 215 ; see Matter of Rubenstein v. Rubenstein, 114 A.D.3d at 798, 980 N.Y.S.2d 531 ; Ashmore v. Ashmore, 114 A.D.3d at 713, 981 N.Y.S.2d 427 ; Matter of Suyunov v. Tarashchansky, 98 A.D.3d at 745, 950 N.Y.S.2d 399 ; Matter of Ceballos v. Castillo, 85 A.D.3d at 1162, 926 N.Y.S.2d 142 ). “On appeal, deference should be given to the credibility determinations of the Support Magistrate, who was in the best position to evaluate the credibility of the witnesses” (Matter of Rubenstein v. Rubenstein, 114 A.D.3d at 798, 980 N.Y.S.2d 531 ; see Matter of Gansky v. Gansky, 103 A.D.3d 894, 895, 962 N.Y.S.2d 255 ; Matter of Suyunov v. Tarashchansky, 98 A.D.3d at 745, 950 N.Y.S.2d 399 ).
Here, the record supports the Support Magistrate's determination that the father failed to demonstrate a substantial change in circumstances warranting a downward modification of his child support obligation. The father failed to adduce sufficient evidence to satisfy his burden of establishing that he diligently sought employment commensurate with his qualifications and experience (see Matter of Riendeau v. Riendeau, 95 A.D.3d at 892, 943 N.Y.S.2d 215 ; Peterson v. Peterson, 75 A.D.3d 512, 513, 904 N.Y.S.2d 500 ; Matter of Gedacht v. Agulnek, 67 A.D.3d 1013, 1013, 890 N.Y.S.2d 76 ). Thus, the Family Court properly denied the father's objections to the Support Magistrate's finding that he was not entitled to a downward modification of his child support obligation.
However, under the circumstances of this case, the instant petition should not have been dismissed “with prejudice” to the filing of any subsequent petition for modification of child support. The Family Court has continuing jurisdiction to modify a prior order of child support upon a proper showing of statutorily enumerated circumstances (see Family Ct. Act § 451[2][a], [b][i], [ii] ). Therefore, the Family Court should have granted the father's objection to the words “with prejudice” in the order dated April 30, 2014, and thereupon substituted the words “without prejudice” for the words “with prejudice” in that order (see Matter of Edwards v. Edwards, 111 A.D.3d 630, 632, 974 N.Y.S.2d 135 ; cf. Matter of French v. Gordon, 103 A.D.3d 722, 723, 960 N.Y.S.2d 143 ).