Opinion
2014-04-23
In the Matter of William SIGNORILE, petitioner, v. Carol KAMINSKI, respondent. (Proceeding No. 1) In the Matter of Carol Kaminski, appellant, v. William Signorile, respondent-respondent. (Proceeding No. 2).
Amy Colvin, Huntington, N.Y., for appellant. Gerome R. Pinkins, Jericho, N.Y., for respondent-respondent.
Amy Colvin, Huntington, N.Y., for appellant. Gerome R. Pinkins, Jericho, N.Y., for respondent-respondent.
In related child support proceedings pursuant to Family Court Act article 4, the mother appeals from an order of the Family Court, Nassau County (Eisman, J.), dated August 1, 2012, which, in effect, confirmed an order of the same court (Bannon, S.M.), dated May 29, 2012, made after a hearing, determining that she wilfully violated the support provisions of a judgment of divorce of the same court dated January 19, 2011, and, in effect, dismissed her petition for downward modification of her child support obligation.
ORDERED that the order is affirmed, without costs or disbursements.
The Family Court did not err in finding that the mother had wilfully violated the child support provisions of the parties' judgment divorce. Evidence of the mother's failure to pay child support as ordered constituted prima facie evidence of a wilful violation ( 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 Rhodes v. Nelson, 113 A.D.3d 864, 979 N.Y.S.2d 541). The burden then shifted to the mother to offer competent, credible evidence of her inability to make the required payments ( see Matter of Powers v. Powers, 86 N.Y.2d at 69, 629 N.Y.S.2d 984, 653 N.E.2d 1154;Matter of Rhodes v. Nelson, 113 A.D.3d at 864, 979 N.Y.S.2d 541). The mother failed to sustain this burden. Although the mother asserted that she was unemployed and had no money to pay child support, she did not present competent, credible evidence that she had actively sought employment sufficient to rebut the father's prima facie showing ( see Matter of Logue v. Abell, 97 A.D.3d 582, 583, 947 N.Y.S.2d 329;Matter of Cooper v. Robertson, 69 A.D.3d 714, 714, 892 N.Y.S.2d 522;Matter of Teller v. Tubbs, 34 A.D.3d 593, 594, 824 N.Y.S.2d 387).
A party seeking to modify a child support award has the burden of establishing the existence of a substantial change in circumstances, measured by comparing the payor's financial situation at the time of the application for downward modification with the payor's financial situation when the award that the payor seeks to modify was made ( see Matter of Dinhofer v. Zabezhanskaya, 79 A.D.3d 1039, 1040, 912 N.Y.S.2d 899;Matter of Mandelowitz v. Bodden, 68 A.D.3d 871, 874, 890 N.Y.S.2d 634;Matter of Talty v. Talty, 42 A.D.3d 546, 547, 840 N.Y.S.2d 114;Klapper v. Klapper, 204 A.D.2d 518, 611 N.Y.S.2d 657). The mother failed to meet her burden of establishing a substantial change of circumstances since the time the original award was made. DICKERSON, J.P., HALL, ROMAN and COHEN, JJ., concur.