Hezi v. Hezi

141 A.D.3d 587

34 N.Y.S.3d 592

2016 N.Y. Slip Op. 05498

In the Matter of Yigal HEZI, appellant,

v.Erica HEZI, respondent. (Proceeding No. 1).

In the Matter of Erica Hezi, respondent,

v.Yigal Hezi, appellant. (Proceeding No. 2).

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

July 13, 2016.

Masch, Coffey & Associates LLP, New City, NY (Julia Louise Masch of counsel), for appellant.

E. Stewart Jones Hacker Murphy LLP, Troy, NY (Thomas J. Higgs and Carl Rosenbloom of counsel), for respondent.

REINALDO E. RIVERA, J.P., RUTH C. BALKIN, SYLVIA O. HINDS–RADIX, and BETSY BARROS, JJ.

Appeal from an order of the Family Court, Westchester County (Arlene E. Katz, J.), dated April 6, 2015. The order denied the father's objections to an order of that court (Esther R. Furman, S.M.) entered December 23, 2014, which granted the mother's petition to enforce the college expenses provisions of the parties' stipulation of settlement and denied his petition for a downward modification of his child support obligation.

ORDERED that the order dated April 6, 2015, is modified, on the law, by deleting the provision thereof denying the father's objections to so much of the order entered December 23, 2014, as granted the mother's petition to enforce the college expenses provisions of the parties' stipulation of settlement, and substituting therefor a provision granting the father's objections to that portion of the order entered December 23, 2014; as so modified, the order dated April 6, 2015, is affirmed, without costs or disbursements, so much of the order dated December 23, 2014, as granted the mother's petition to enforce the college expenses provisions of the parties' stipulation of settlement is vacated, and the matter is remitted to the Family Court, Westchester County, for a new hearing and determination on the mother's petition.

The parties are divorced and the subject child lives with the mother. In a 2012 stipulation of settlement, the father agreed to pay $950 per month in child support for the subject child, which amount was based on an imputed gross income of $72,500 per year. The mother subsequently filed a petition to enforce the college expenses provisions of the parties' stipulation of settlement, and the father filed a petition for a downward modification of his child support obligation. In an order entered December 23, 2014, a Support Magistrate granted the mother's petition and denied the father's petition. In an order dated April 6, 2014, the Family Court denied the father's objections to the Support Magistrate's order. The father appeals.

The Family Court properly denied the father's objections to so much of the Support Magistrate's order as denied his petition for a downward modification of his child support obligation. “The court may modify an order of child support ... upon a showing of a substantial change in circumstances” (Family Ct. Act § 451[3][a] ). The court may also modify an order of child support when “there has been a change in either party's gross income by fifteen percent or more since the order was entered, last modified, or adjusted. A reduction in income shall not be considered as a ground for modification unless it 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] ). Deference should be given to credibility determinations of the Support Magistrate, who was in the best position to evaluate the credibility of the witnesses on this point (see Matter of Ippolito v. Uriarte, 112 A.D.3d 716, 717, 976 N.Y.S.2d 394 ).

Here, the father failed to demonstrate that a substantial change in circumstances had occurred and that he had diligently searched for comparable employment (see Matter of Rolko v. Intini, 128 A.D.3d 705, 706, 9 N.Y.S.3d 101 ). The father also failed to demonstrate that the subject...