Christopher C. v. Kimberly C.

177 A.D.3d 1129

115 N.Y.S.3d 121

In the Matter of CHRISTOPHER C., Appellant,

v.KIMBERLY C., Respondent.

527671

Supreme Court, Appellate Division, Third Department, New York.

Calendar Date: October 10, 2019

Decided and Entered: November 21, 2019

Mack & Associates, PLLC, Albany (Barrett D. Mack of counsel), for appellant.

Joch & Kirby, Ithaca (Susan C. Kirby of counsel), for respondent.

Before: Egan Jr., J.P., Clark, Mulvey and Devine, JJ.

MEMORANDUM AND ORDER

Clark, J. Appeal from an order of the Family Court of Tompkins County (Cassidy, J.), entered April 13, 2018, which dismissed petitioner's application, in a proceeding pursuant to Family Ct. Act article 4, to modify a prior support obligation.

Petitioner (hereinafter the father) and respondent (hereinafter the mother) are the parents of two children (born in 1999 and 2002). Pursuant to an April 2016 judgment of divorce, which was affirmed on appeal ( Kimberly C. v. Christopher C., 155 A.D.3d 1329, 65 N.Y.S.3d 260 [2017] ), the father has a monthly child support obligation of $6,181.02.¹ In July 2017, the father commenced this Family Ct. Act article 4 proceeding seeking a downward modification of his child support obligation. A hearing was held before a Support Magistrate, who ultimately dismissed the petition based upon the father's failure to satisfy his burden of proof. Family Court denied the father's objections to the Support Magistrate's order, prompting this appeal.

We affirm. "[A] court may modify an order of child support ... upon a showing of a substantial change in circumstances" by the party seeking the modification ( Family Ct. Act § 451[3][a] ; see Matter of Freedman v. Horike, 68 A.D.3d 1205, 1206, 891 N.Y.S.2d 173 [2009], lv dismissed and denied 14 N.Y.3d 811, 899 N.Y.S.2d 751, 926 N.E.2d 255 [2010] ). A court may also modify a child support obligation where "there has been a change in either party's gross income by [15%] or more since the order was entered," provided that such reduction "was involuntary and the party has made diligent attempts to secure employment commensurate with his or her education, ability, and experience" ( Family Ct. Act § 451[3][b][ii] ; see Matter of Hezi v. Hezi, 141 A.D.3d 587, 588, 34 N.Y.S.3d 592 [2016] ).

The hearing evidence established that the father has a Bachelor's degree in chemistry, a Juris Doctorate degree and a Master's degree in business administration, and he is a registered patent attorney in New York. The father testified that he is a co-owner of a New York law firm that practices patent law, but he derives little to no income from the firm given that he works full time for a Florida-based company, for which he serves as the Vice–President of Strategic Development and Technology License. The father testified that he primarily lives in Florida, but that he owns a duplex in New York – from which he derives rental income – and he anticipates an increased presence in New York as a result of an agreement to buy out his co-owner's interest in the law firm. Although the evidence – including the father's testimony, 2016 income tax return and paystubs from July 2017 through October 2017 – reflected that, due to company restructuring, the father's salary at the Florida-based company had been reduced by more than 15%, the father made no showing of an attempt to obtain comparable employment commensurate with his education, abilities and experience (see Matter of Valverde v. Owens, 160 A.D.3d 753, 755, 71 N.Y.S.3d 374 [2018] ; Matter of Rizzo v. Spear, 152 A.D.3d 774, 776, 59 N.Y.S.3d 126 [2017] ). As Family Court aptly put it, the father "presented no evidence [as to] why he would be...