Gharachorloo v. Regeer

173 A.D.3d 1025

100 N.Y.S.3d 886 (Mem)

In the Matter of Nader GHARACHORLOO, Appellant,

v.Jennifer REGEER, Respondent.

2019–00841

Docket No. F–10192–12/17L

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

Submitted—May 23, 2019

June 19, 2019

The Law Firm of Gary N. Weintraub, LLP, Huntington, NY, for appellant.

Somer & Heller, LLP, Commack, N.Y. (Jeffrey T. Heller of counsel), for respondent.

LEONARD B. AUSTIN, J.P., BETSY BARROS, FRANCESCA E. CONNOLLY, ANGELA G. IANNACCI, JJ.

DECISION & ORDER

In a proceeding pursuant to Family Court Act article 4, the father appeals from an order of the Family Court, Suffolk County (David Morris, J.), dated December 14, 2018. The order denied the father's objections to an order of the same court (Kathryn L. Coward, S.M.) dated October 19, 2018, which, after a hearing, and upon findings of fact dated October 18, 2018, denied his petition for a downward modification of his child support obligation.

ORDERED that the order dated December 14, 2018, is affirmed, with costs.

The mother and the father are the unmarried parents of a child. The mother has custody of the child, and pursuant to an order dated May 2, 2016, entered on the parties' consent, the father was directed to pay child support in the sum of $587 bi-weekly, payable through the Support Collection Unit.

On May 5, 2017, the father lost his job due to a reduction in the workforce at his place of employment. On October 24, 2017, the father filed a petition seeking a downward modification of his child support obligation. Following a hearing, in an order dated October 19, 2018, the Support Magistrate denied the petition, finding that the father had failed to demonstrate a change in circumstances since the prior order warranting a downward modification of his child support obligation. The father filed objections to the Support Magistrate's order. In an order dated December 14, 2018, the Family Court denied the father's objections. The father appeals.

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 (see Family Ct Act § 451 ; Matter of Patscot v. Fisco, 166 A.D.3d 981, 981, 86 N.Y.S.3d 735 ; Matter of Lindsay v. Lindsay–Lewis, 156 A.D.3d 642, 642, 64 N.Y.S.3d 564 ; Matter of Baumgardner v. Baumgardner, 126 A.D.3d 895, 896, 6 N.Y.S.3d 90 ). "A parent's loss of employment may constitute a substantial change in circumstances" ( Matter of Rubenstein v. Rubenstein, 114 A.D.3d 798, 798, 980 N.Y.S.2d 531 ; see Matter of Hackett v. Hackett, 154 A.D.3d 751, 752, 61 N.Y.S.3d 682 ; Matter of Suyunov v. Tarashchansky, 98 A.D.3d 744, 745, 950 N.Y.S.2d 399 ). A parent seeking a 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 Patscot v. Fisco, 166 A.D.3d at 982, 86 N.Y.S.3d 735 ; Matter of Gillison v. Penepent, 156 A.D.3d 697, 698, 66 N.Y.S.3d 293 ; Matter of Lindsay v. Lindsay–Lewis, 156 A.D.3d at 642, 64 N.Y.S.3d 564 ; Matter of Rubenstein v. Rubenstein , 114 A.D.3d at 798, 980 N.Y.S.2d 531 ). 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 Pathak v. Shukla, 164 A.D.3d 690, 691 ; Matter of Gillison v. Penepent, 156 A.D.3d at 698, 66 N.Y.S.3d 293 ; Matter of Binong Xu v. Sullivan, 155 A.D.3d 1031, 1033, 65 N.Y.S.3d 204 ).

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 (see Matter of Hezi v. Hezi, 141 A.D.3d 587, 588, 34 N.Y.S.3d 592 ; Matter of Rubenstein v. Rubenstein, 114 A.D.3d at 798, 980 N.Y.S.2d 531 ; Matter of Ippolito v. Uriarte, 112 A.D.3d 716, 717, 976 N.Y.S.2d 394 ).

Here, the Support Magistrate properly considered the father's assets, as well as his earning capacity, in determining that, under the circumstances, the father was not entitled to a downward modification (see Lueker v. Lueker, 132 A.D.3d 739, 741, 17 N.Y.S.3d 778 ; ...