Opinion
2017–00071 Docket No. F–7152–15
12-06-2017
Matter of John E. LINDSAY, appellant, v. Sheree N. LINDSAY–LEWIS, respondent.
John Erick Lindsay, named herein as John E. Lindsay, Wellington, Florida, appellant pro se. Sheree Lindsay, sued herein as Sheree N. Lindsay–Lewis, Baldwin, NY, respondent pro se.
John Erick Lindsay, named herein as John E. Lindsay, Wellington, Florida, appellant pro se.
Sheree Lindsay, sued herein as Sheree N. Lindsay–Lewis, Baldwin, NY, respondent pro se.
LEONARD B. AUSTIN, J.P., SHERI S. ROMAN, SANDRA L. SGROI, VALERIE BRATHWAITE NELSON, JJ.
DECISION & ORDERAppeal by the father from an order of the Family Court, Nassau County (Felice J. Muraca, J.), dated November 14, 2016. The order denied the father's objections to an order of that court (Adam E. Small, S.M.), dated April 28, 2016, which, after a fact-finding hearing, dismissed, without prejudice, his petition for a downward modification of his child support obligation.
ORDERED that the order dated November 14, 2016, is affirmed, with costs.
A "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 Baumgardner v. Baumgardner, 126 A.D.3d 895, 896–897, 6 N.Y.S.3d 90 ; see Matter of Rubenstein v. Rubenstein, 114 A.D.3d 798, 798, 980 N.Y.S.2d 531 ; Matter of Suyunov v. Tarashchansky, 98 A.D.3d 744, 745, 950 N.Y.S.2d 399 ). "A parent's loss of employment may constitute a substantial change in circumstances" ( Matter of Rubenstein v. Rubenstein, 114 A.D.3d at 798, 980 N.Y.S.2d 531 ; see Matter of Suyunov v. Tarashchansky, 98 A.D.3d at 745, 950 N.Y.S.2d 399 ; Matter of Ceballos v. Castillo, 85 A.D.3d 1161, 1162, 926 N.Y.S.2d 142 ). A parent seeking 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 Rubenstein v. Rubenstein, 114 A.D.3d at 798, 980 N.Y.S.2d 531 ; Ashmore v. Ashmore, 114 A.D.3d 712, 713, 981 N.Y.S.2d 427 ; Matter of Nenninger v. Tonnessen, 113 A.D.3d 619, 977 N.Y.S.2d 897 ; Matter of Suyunov v. Tarashchansky, 98 A.D.3d at 745, 950 N.Y.S.2d 399 ; Matter of Ceballos v. Castillo, 85 A.D.3d at 1162, 926 N.Y.S.2d 142 ).
Here, the record supports the Support Magistrate's determination that the father failed to demonstrate a substantial change in circumstances warranting a downward modification of his child support obligation. The evidence submitted relating to the father's unemployment showed that he voluntarily left his job to follow his girlfriend to Florida. Thus, the father failed to establish that the termination of his employment did not occur through his own fault (see Matter of Rosalind EE. v. William EE., 4 A.D.3d 629, 772 N.Y.S.2d 127 ; Alfano v. Alfano, 151 A.D.2d 530, 542 N.Y.S.2d 313 ; see also Matter of Westwater v. Donnelly, 204 A.D.2d 467, 612 N.Y.S.2d 58 ). Furthermore, the father failed to adduce sufficient evidence to satisfy his burden of establishing that he diligently sought re-employment commensurate with his qualifications and experience (see Matter of Rolko v. Intini, 128 A.D.3d 705, 9 N.Y.S.3d 101 ; Matter of Riendeau v. Riendeau, 95 A.D.3d 891, 943 N.Y.S.2d 215 ; Matter of Peterson v. Peterson, 75 A.D.3d 512, 904 N.Y.S.2d 500 ; Matter of Gedacht v. Agulnek, 67 A.D.3d 1013, 890 N.Y.S.2d 76 ).
The father's remaining contention is without merit.
Accordingly, the Family Court properly denied the father's objections to the Support Magistrate's order finding that he was not entitled to a downward modification of his child support obligation.
AUSTIN, J.P., ROMAN, SGROI and BRATHWAITE NELSON, JJ., concur.