Moreover, "when the original child support amount is based on an agreement by the parties, there is a heavier burden on the party seeking a downward modification" ( Maher v. Maher , 96 So.3d 1022, 1022 [Fla. 4th DCA 2012] ). An analysis under New York law yields an identical outcome because a party seeking modification of an order of support has the burden of establishing the existence of a substantial change in circumstances ( O'Brien v. McCann , 249 A.D.2d 92, 671 N.Y.S.2d 458 [1st Dept. 1998] ). While a loss of income may be sufficient to modify an order of support in some circumstances, the determination to reduce support "must be based on the petitioner's capacity to generate income, not his current economic status" ( id. at 93, 671 N.Y.S.2d 458 ).
The Family Court properly awarded reasonable childcare costs to the mother ( Family Court Act ยง 413[1][c][4] ). With respect to the father's downward modification petition, a party seeking modification of an order of support has the burden of establishing the existence of a substantial change in circumstances ( O'Brien v. McCann , 249 A.D.2d 92, 671 N.Y.S.2d 458 [1st Dept. 1998] ). While a loss of income may be sufficient to modify an order of support in some circumstances, the determination to reduce support "must be predicated on the [petitioner's] capacity to generate income, not his current economic status" ( id. at 93, 671 N.Y.S.2d 458 ).
Order, Family Court, New York County (Susan R. Larabee, J.), entered on or about June 23, 2014, which denied petitioner's objection to an order dismissing his petition for downward modification of an order of child support, unanimously affirmed, without costs. Petitioner failed to meet his burden of establishing the existence of a substantial change of circumstances sufficient to warrant a downward modification of child support (O'Brien v. McCann, 249 A.D.2d 92, 92, 671 N.Y.S.2d 458 [1st Dept.1998] ). Petitioner failed to show that he lost his job through no fault of his own ( see id. at 93, 671 N.Y.S.2d 458). We have considered petitioner's remaining contentions, including those regarding his paternity and respondent's default, and find them unavailing.
The Family Court properly found that the father did not prove the existence of a substantial change in circumstances to warrant a downward modification of the child support order because of his capacity to generate income ( O'Brien v. McCann, 249 A.D.2d 92, 671 N.Y.S.2d 458 [1st Dept. 1998] ). Although the father was earning minimum wage at the time of the hearing, he testified that he was an experienced trader with more than 20 years of experience and an even more experienced diamond dealer.
In any event, the parties' agreement provides a mechanism for increases every three years based on defendant's income. Plaintiff also failed to provide any evidence to support her claim that she made efforts to find employment commensurate with her training and experience ( see O'Brien v. McCann, 249 A.D.2d 92, 671 N.Y.S.2d 458 [1st Dept. 1998]; Piernick v. Nazinitsky, 48 A.D.3d 690, 850 N.Y.S.2d 914 [2d Dept. 2008] ). In any event, plaintiff's underemployment was not a change in circumstances as she had been unemployed and/or underemployed at the time of the parties' agreement.
The record demonstrates that the eviction was unrelated to any claimed support issues. Plaintiff failed to meet her burden of establishing a substantial change in circumstances warranting an upward modification in child support since she failed to submit credible evidence of her income, assets or means of support ( see Matter of Sullivan v. Sullivan, 22 A.D.3d 415, 803 N.Y.S.2d 54 [1st Dept.2005] ). Plaintiff also failed to demonstrate any efforts she has made to find employment commensurate with her training and experience (O'Brien v. McCann, 249 A.D.2d 92, 671 N.Y.S.2d 458 [1st Dept.1998] ). Moreover, the child's alleged needs exceeded her actual reasonable needs ( see Matter of Erin C. v. Peter H., 66 A.D.3d 451, 887 N.Y.S.2d 551 [1st Dept.2009], lv. denied15 N.Y.3d 704, 2010 WL 3397326 [2010] ). We have considered plaintiff's remaining contentions and find them unavailing.
Order, Family Court, Bronx County (Clark V. Richardson, J.), entered on or about September 10, 2008, which, upon the parties' respective objections to the Support Magistrate's order, entered June 3, 2008, dismissing petitioner's petition for a downward modification in child support, vacated the June 3, 2008 order and reinstated a June 30, 2006 support order of $1,817 per month, unanimously affirmed, without costs. Petitioner failed to show a substantial change in circumstances warranting a downward modification of the support award ( see Matter of Sullivan v. Sullivan, 22 A.D.3d 415, 803 N.Y.S.2d 54 [2005] ). He provided no documentation to substantiate his claimed income or his claimed receipt of public assistance. He failed to produce an up-to-date diary detailing his job search for work commensurate with his training and experience ( see O'Brien v. McCann, 249 A.D.2d 92, 671 N.Y.S.2d 458 [1998] ). Petitioner was properly advised of his right to counsel.
Contrary to the father's contention that he should not have been jailed because the mother did not show that he was capable of paying the amount in arrears, the subject order of commitment was not conditioned on the payment of arrears ( compare Matter of Nasser v Abraham, 86 AD2d 973). Except as indicated above, Family Court providently exercised its discretion in denying the father's objections to the Support Magistrate's dismissal of his petition ( see Matter of Musumeci v Musumeci, 295 AD2d 516). While the father testified that he was unemployed during certain periods before and after the filing of his petition, "the determination to reduce support must be predicated on respondent's capacity to generate income, not on his current economic status" ( O'Brien v McCann, 249 AD2d 92, 93). The Support Magistrate was not obliged to accept the father's unsupported testimony that a medical condition prevented him from working full-time ( see Matter of Maria T. v Kwame A., 35 AD3d 239, 240), and the mother was within her rights to object that the father's testimony about what a doctor concluded was hearsay ( see Family Ct Act ยง 439 [d]).
Although we agree with the motion court that plaintiff has carried his burden of proving that some reduction of his maintenance and child support obligations is in order ( cf. O'Brien vMcCann, 249 AD2d 92), we do not believe that the existing record supports the amounts of the reductions the court granted. In particular, the attribution to plaintiff of annual income of $200,000 for the entire period since November 21, 2002 was based on only one paycheck issued in February 2004, which, if projected to an annual basis, reflected annual income of approximately that amount.
Before: Buckley, P.J., Mazzarelli, Saxe, Williams and McGuire, JJ., concur. In view of the circumstance that petitioner's income has improved since entry of the support order, petitioner concedes that he is unable to make a showing of a substantial change in circumstance warranting downward modification of his child support obligation ( see Colyer v. Colyer, 309 AD2d 9, 15-16; O'Brien v. McCann, 249 AD2d 92; Cheryl R. v. Laurence R., 223 AD2d 484). Petitioner's argument that the court, in a prior, unappealed order setting his child support obligation, failed to consider that his receipt of certain funds amounting to nearly $1 million was attributable to a one-time distribution of nonrecurring assets, is not properly before us. Were we to address the argument, we would reject it since it is apparent that Family Court expressly took the nonrecurring nature of the distribution into consideration. We would also reject petitioner's argument that he should be relieved of his child support obligation because he did not have the assets at issue at the time of the support order and does not have them now. Petitioner, we note, does not challenge the finding that he deliberately divested himself of the subject funds in an attempt to avoid his child support obligations.