Opinion
11-25-2015
In the Matter of Uric STRAKER, respondent, v. Debra MAYNARD–STRAKER, appellant.
Meghan Faux, Brooklyn, N.Y. (Nanette Ida Buoneto and Anna Maria Diamanti of counsel), for appellant.
Meghan Faux, Brooklyn, N.Y. (Nanette Ida Buoneto and Anna Maria Diamanti of counsel), for appellant.
REINALDO E. RIVERA, J.P., THOMAS A. DICKERSON, ROBERT J. MILLER, and JOSEPH J. MALTESE, JJ.
Appeal from an order of the Family Court, Kings County (Ann Elizabeth O'Shea, J.), dated June 26, 2014. The order denied the mother's objections to an order of that court (Elizabeth Shamahs, S.M.) dated May 5, 2014, which, after a hearing, granted the father's petition for a downward modification of his child support obligation.
ORDERED that the order dated June 26, 2014, is reversed, on the law, without costs or disbursements, the mother's objections to the order dated May 5, 2014, are granted, the order dated May 5, 2014, is vacated, and the father's petition for a downward modification of his child support obligation is denied.
The father's child support obligation was set forth in a stipulation of settlement executed on November 4, 2009, which was incorporated but not merged into the parties' judgment of divorce. Since the parties' stipulation of settlement was executed prior to the effective date of the 2010 amendments to Family Court Act § 451 (see L. 2010, ch. 182, § 13), in order to establish his entitlement to a downward modification of his child support obligation, the father had the burden of establishing a substantial and unanticipated change in circumstances (see former Family Ct. Act. § 451[2] [a]; Merl v. Merl, 67 N.Y.2d 359, 502 N.Y.S.2d 712, 493 N.E.2d 936 ; Kaplan v. Kaplan, 130 A.D.3d 576, 578, 13 N.Y.S.3d 184 ; Matter of Suchan v. Eagar, 121 A.D.3d 910, 910, 993 N.Y.S.2d 519 ; Matter of Corbisiero v. Corbisiero, 112 A.D.3d 625, 626, 975 N.Y.S.2d 911 ). "Where the change in circumstances is the loss of employment, a party seeking a downward modification must make a good-faith effort at seeking re-employment commensurate with his or her qualifications and experience" (Matter of Davis v. Davis, 13 A.D.3d 623, 624, 787 N.Y.S.2d 113 ; see Matter of Dimaio v. Dimaio, 111 A.D.3d 933, 934, 976 N.Y.S.2d 133 ; Matter of Yepes v. Fichera, 230 A.D.2d 803, 804, 646 N.Y.S.2d 533 ). Where a party loses his or her job due to an illness or injury, "the party has the same obligation to find some other type of employment, unless that party can demonstrate that he or she is unable to perform other work" (Mater of Davis v. Davis, 13 A.D.3d at 624, 787 N.Y.S.2d 113 ; see Matter of Karagiannis v. Karagiannis, 73 A.D.3d 1064, 1065, 901 N.Y.S.2d 669 ).
"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 DaVolio v. DaVolio, 101 A.D.3d 1120, 1121, 956 N.Y.S.2d 511 ; see Matter of Suyunov v. Tarashchansky, 98 A.D.3d 744, 745, 950 N.Y.S.2d 399 ; Matter of Malbin v. Martz, 88 A.D.3d 715, 717, 930 N.Y.S.2d 67 ). Here, although the father testified that he had a problem with his eyes that precluded him from maintaining employment in his field of installing drywall, he failed to submit competent medical proof of his alleged eye condition or that it rendered him unable to install drywall or perform some other type of work (see Matter of Pepe v. Pepe, 128 A.D.3d 831, 834, 9 N.Y.S.3d 161 ; Matter of Monroe v. Jordan–Monroe, 103 A.D.3d 803, 959 N.Y.S.2d 452 ; Matter of Gray v. Gray, 52 A.D.3d 1287, 1288, 859 N.Y.S.2d 785 ; Matter of Greene v. Holmes, 31 A.D.3d 760, 762, 820 N.Y.S.2d 597 ; Matter of
Davis v. Davis, 13 A.D.3d at 624, 787 N.Y.S.2d 113 ). Furthermore, the father presented no evidence that he made a good faith effort to obtain some other type of employment (see Matter of Davis v. Davis, 13 A.D.3d at 624, 787 N.Y.S.2d 113 ). Accordingly, the Family Court should have denied his petition for a downward modification of his child support obligation.
In light of the foregoing, we need not reach the mother's remaining contention.