Opinion
535629
11-22-2023
In the Matter Ronald C. ROSE, Appellant, v. Lynda LEWANDOWSKI, Respondent.
Sandra M. Colatosti, Albany, for appellant. Michelle I. Rosien, Philmont, for respondent.
Sandra M. Colatosti, Albany, for appellant.
Michelle I. Rosien, Philmont, for respondent.
Before: Garry, P.J., Pritzker, Reynolds Fitzgerald, Ceresia and Mackey, JJ.
MEMORANDUM AND ORDER
Mackey, J. Appeal from an order of the Family Court of Schoharie County (George R. Bartlett III, J.), entered May 13, 2022, which, in a proceeding pursuant to Family Ct Act article 4, denied petitioner's objections to an order of a Support Magistrate.
Petitioner (hereinafter the father) and respondent (hereinafter the mother) are the divorced parents of three children (born in 1998, 2001 and 2004). According to a July 2019 order of support, the father was required to pay child support in the amount of $203.47 per week, in addition to a 60% pro rata share of any uninsured health care expenses to the mother. In February 2021, the father commenced this proceeding for a modification of his child support obligations on the ground that he had turned 62 and retired. The Support Magistrate (Corona, S.M.) found that the father failed to show an involuntary reduction in his income and, therefore, did not demonstrate a sufficient change in circumstances so as to warrant a downward modification. The Support Magistrate issued an order dismissing the modification petition and Family Court subsequently denied the father's objections thereto, prompting this appeal. We affirm.
The July 2019 order scheduled a reduction in the father's basic child support obligation effective June 2, 2019, from $236.02 to $203.47 as the parties' oldest child turned 21. By a subsequent order dated May 11, 2023, Family Court also terminated the father's child support obligation as to the middle child as that child also turned 21. Inasmuch as the father remains obligated to pay child support for the parties' youngest child – and to the extent that arrears may be owed by the father regarding the middle child – this appeal is not moot (see Matter of O'Brien v. Rutland, 180 A.D.3d 1183, 1183–84, 120 N.Y.S.3d 454 [3d Dept. 2020] ).
In seeking a downward modification, it was incumbent upon the father to show that, since the July 2019 order, there was a change in his gross income by at least 15%, that the reduction was involuntary, and that he had made diligent efforts to secure employment commensurate with his ability, experience and education (see Family Ct Act § 451[3][b][ii] ; see Matter of Ramon ZZ. v. Amanda YY., 192 A.D.3d 1369, 1369–1370, 144 N.Y.S.3d 479 [3d Dept. 2021], lv denied 37 N.Y.3d 911, 2021 WL 4617905 [2021] ; Matter of Christopher C. v. Kimberly C., 177 A.D.3d 1129, 1129, 115 N.Y.S.3d 121 [3d Dept. 2019] ).
Here, the record supports the Support Magistrate's determination that the father's reduction in income was voluntary. The father premised his downward modification petition on the ground that he had retired and was no longer operating his automotive repair business, thereby resulting in a loss of income. According to the father, he was "forced" to retire due to bad knees, for which he underwent double knee replacement surgery in September 2019. However, he failed to present any medical proof that he is disabled and unable to continue to operate his business. As the Support Magistrate aptly put it, "[i]f in fact [the father] did sustain a loss in income as a result of his retirement, such loss was self-imposed. He retired by choice at the age of 62 because he was eligible. While this decision might be a perfectly acceptable one for people who do not have young children to support, that is not the case for [the father]." The record also supports the Support Magistrate's determination that the father's testimony regarding his income and expenses lacked credibility and that he was not forthcoming in the requisite financial disclosure statement.
According deference to the credibility determinations of the Support Magistrate and Family Court, including that the father failed to present competent medical proof of his inability to work and presented an inaccurate picture of his finances (see Matter of Jeffers v. Jeffers, 133 A.D.3d 1139, 1140, 20 N.Y.S.3d 691 [3d Dept. 2015] ; Matter of Boyle v. Boyle, 101 A.D.3d 1412, 1413, 955 N.Y.S.2d 777 [3d Dept. 2012] ; Matter of Vickery v. Vickery, 63 A.D.3d 1220, 1221, 880 N.Y.S.2d 724 [3d Dept. 2009] ; Matter of Rosalind EE. v. William EE., 4 A.D.3d 629, 630, 772 N.Y.S.2d 127 [3d Dept. 2004], lv denied 3 N.Y.3d 606, 785 N.Y.S.2d 23, 818 N.E.2d 665 [2004] ), Family Court properly denied the father's objections (see Matter of Freedman v. Horike, 68 A.D.3d 1205, 1206, 891 N.Y.S.2d 173 [3d Dept. 2009] ; Matter of Latimer v. Cartin, 57 A.D.3d 1264, 1265, 870 N.Y.S.2d 554 [3d Dept. 2008] ).
Garry, P.J., Pritzker, Reynolds Fitzgerald and Ceresia, JJ., concur.
ORDERED that the order is affirmed, without costs.