Opinion
2012-12-26
In the Matter of Richard J. DaVOLIO, appellant, v. Theresa DaVOLIO, respondent.
Richard J. DaVolio, Sayville, N.Y., appellant pro se.
, P.J., DANIEL D. ANGIOLILLO, SANDRA L. SGROI, and SYLVIA HINDS–RADIX, JJ.
In a support proceeding pursuant to Family Court Act article 4, the father appeals from (1) an order of the Family Court, Suffolk County (Willmott, S.M.), dated December 16, 2011, which, after a hearing, dismissed, with prejudice, his petition for a downward modification of his child support obligations, and (2) an order of the same court (Genchi, J.) dated March 5, 2012, which denied his objections to the order dated December 16, 2011.
ORDERED that the appeal from the order dated December 16, 2011, is dismissed, without costs or disbursements, as that order was superseded by the order dated March 5, 2012; and it is further,
ORDERED that the order dated March 5, 2012, is affirmed, without costs or disbursements.
“The child support provisions contained in a stipulation of settlement incorporated but not merged into a judgment of divorce should not be disturbed unless there has been a substantial and unanticipated change in circumstances since the entry of the judgment of divorce” (Matter of Bruckstein v. Bruckstein, 78 A.D.3d 695, 696, 910 N.Y.S.2d 176). “A parent's loss of employment may constitute a substantial and unanticipated change in circumstances justifying a downward modification of child support where 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 Atabay v. Cinar, 96 A.D.3d 832, 833, 946 N.Y.S.2d 224). “The party seeking the modification has the burden of establishing such a change in circumstances” ( Rooney v. Rooney, 99 A.D.3d 785, 785, 951 N.Y.S.2d 682). “In reviewing a determination of the Family Court, 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” (Matter of Suyunov v. Tarashchansky, 98 A.D.3d 744, 745, 950 N.Y.S.2d 399;see Matter of Kirchain v. Smith, 84 A.D.3d 1237, 923 N.Y.S.2d 860).
Here, the record supports the Support Magistrate's determination that the father did not testify credibly regarding the reasons and circumstances surrounding his departure from his former employment. Further, contrary to the father's contention, he failed to adduce sufficient credible evidence to satisfy his burden of establishing that he lost his employment through no fault of his own and that he diligently sought re-employment commensurate with his earning capacity ( see Matter of Atabay v. Cinar, 96 A.D.3d at 833, 946 N.Y.S.2d 224;Matter of Riendeau v. Riendeau, 95 A.D.3d at 892, 943 N.Y.S.2d 215). Thus, the Family Court properly denied the father's objections to the Support Magistrate's finding that the father was not entitled to a downward modification of his child support obligation.
The father's remaining contentions are either not properly before this Court or without merit.