Opinion
November 16, 1987
Appeal from the Family Court, Nassau County (Mellan, H.E., Mosca, J.).
Ordered that the orders are reversed, without costs or disbursements, the appellant's petition for downward modification is granted to the extent that effective as of August 27, 1986, the amount that the appellant is required to pay to the Support Collection Unit of the Nassau County Department of Social Services is reduced to $80 per week for the support of his wife and $30 per week for the support of each of his two children, for a total sum of $140 per week, and the matter is remitted to the Family Court, Nassau County, for redetermination of arrears in accordance herewith and for the entry of an appropriate money judgment.
The record does not support the Hearing Examiner's finding that the appellant's earning ability as a "submersible pilot" and "swimmer diver" had not declined. The appellant established that the periodic contracts pursuant to which that work was performed had become less plentiful because of a decline in exploratory oil drilling. Moreover, he actively sought work in the marine diving field for a number of months before accepting temporary employment performing unrelated, less lucrative work. There is no basis in this record for an inference that the appellant's undisputed reduction in income was self-imposed for the purpose of avoiding his support obligations (cf., Hickland v. Hickland, 39 N.Y.2d 1, cert denied 429 U.S. 941).
Considering the current, albeit reduced potential for work in the appellant's chosen field, we find that his support obligation should have been reduced to a total weekly sum of $140, effective upon the August 27, 1986, filing of the petition for downward modification. While there is no basis for reduction of arrears accruing prior to that date (see, Family Ct Act § 451, 460), the record is inadequate for determination of the appropriate amount of total arrears. Thompson, J.P., Niehoff, Eiber, Sullivan and Harwood, JJ., concur.