Cywiak v. Packman

214 A.D.3d 652

182 N.Y.S.3d 908 (Mem)

In the Matter of Michael Maier CYWIAK, appellant,

v.Michal PACKMAN, respondent.

2022–01133

Docket Nos. F–3205–15/19G, F–3205–15/20J

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

Submitted—February 6, 2023

March 1, 2023

Michael Maier Cywiak, Monsey, NY, appellant pro se.

Miller Zeiderman LLP, White Plains, NY (Lisa Zeiderman of counsel), for respondent.

VALERIE BRATHWAITE NELSON, J.P., ANGELA G. IANNACCI, WILLIAM G. FORD, HELEN VOUTSINAS, JJ.

DECISION & ORDER

In related proceedings pursuant to Family Court Act article 4, the father appeals from an order of the Family Court, Westchester County (Wayne A. Humphrey, J.), dated January 6, 2022. The order denied the father's objections to an order of the same court (Rosa Cabanillas–Thompson, S.M.) dated October 13, 2021, which, after a hearing, dismissed the father's petitions for a downward modification of his child support obligation.

ORDERED that the order dated January 6, 2022, is affirmed, without costs or disbursements.

The parties are the parents of two children. In an order dated September 16, 2016 (hereinafter the 2016 order), the father was directed to pay basic child support and childcare expenses. In 2019 and 2020, the father commenced separate proceedings for a downward modification of his child support obligation, alleging that there had been a substantial change in circumstances in that his income had decreased. Following a hearing, in an order dated October 13, 2021, the Support Magistrate dismissed the petitions, finding that the father failed to demonstrate a substantial change in circumstances or that his gross income had decreased by 15% or more. In an order dated January 6, 2022, the Family Court denied the father's objections to the Support Magistrate's order. The father appeals.

"The court may modify an order of child support ... upon a showing of a substantial change in circumstances" ( Family Ct Act § 451[3][a] ). "In addition, unless the parties have specifically opted out ..., the court may modify an order of child support where ... there has been a change in either party's gross income by [15%] or more since the order was entered [or] modified" ( id. § 451[3][b][ii] ). "The 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 Vetrano v. Vetrano, 177 A.D.3d 890, 891, 115 N.Y.S.3d 104 ; see Matter of Castelli v. Maiuri–Castelli, 198 A.D.3d 752, 753, 156 N.Y.S.3d 273 ).

"In determining whether there has been a change in circumstances warranting modification of a parent's child support obligation, the court must consider several factors, including the increased needs of the children, the increased cost of living insofar as it results in greater expenses for the children, a loss of income or assets by a parent or a substantial improvement in the financial condition of a parent, and the current and prior lifestyles of the children" ( Matter of Baumgardner v. Baumgardner, 126 A.D.3d 895, 897, 6 N.Y.S.3d 90 [internal quotation marks omitted]; see Matter of Brescia v. Fitts, 56 N.Y.2d 132, 141, 451 N.Y.S.2d 68, 436 N.E.2d 518 ). "A substantial change in circumstances may be measured by comparing the parties' financial situation at the time of the application for modification with that existing at the time the order sought...