Opinion
11641 11641A Dkt. F-44460 10/18S & U
06-11-2020
In re SUSAN A., Petitioner–Appellant, v. CHRISTOPHER O., Respondent–Respondent.
Susan A., appellant pro se.
Susan A., appellant pro se.
Friedman, J.P., Mazzarelli, Gesmer, Singh, Gonza´lez, JJ.
Order, Family Court, New York County (Clark V. Richardson, J.), entered on or about September 27, 2018, which denied petitioner's objections to the findings of the Support Magistrate that Family Court lacked continuing jurisdiction over a 2011 child support order, and dismissed the petition for upward modification of the child support order, and order, same court and Judge, entered on or about December 28, 2018, which denied petitioner's objections to the Support Magistrate's order, and dismissed her petition for failure to show a change of circumstances, unanimously affirmed, without costs.
Respondent resides in Texas. It is undisputed that petitioner and the child no longer resided in New York by January 17, 2017. Petitioner failed to show that she or the child resided here when the June 5, 2018 petition was filed (see Matter of Deazle v. Miles, 77 A.D.3d 660, 662–663, 908 N.Y.S.2d 716 [2d Dept. 2010] ). The month-to-month lease that petitioner showed to the Support Magistrate during the August 2018 modification hearing was not entered into evidence and is not included in the record. Even if a month to month lease commencing June 1, 2018 (as petitioner claims) were in the record, that would be insufficient to establish that she or the child were New York State residents as a matter of law when the June 5, 2018 petition was filed, since neither such a document nor any evidence admitted at the hearing demonstrates a significant connection within this state "as the result of living [here] for some length of time during the course of a year" ( Wittich v. Wittich, 210 A.D.2d 138, 139, 620 N.Y.S.2d 351 [1st Dept. 1994] [internal quotation marks omitted] ). In fact, the evidence presented during the hearing indicated that petitioner and the child were residents of Rhode Island.
Even if respondent consented to New York's continuing jurisdiction by filing his own modification petition (see Family Ct. Act § 580–205[a][2] ), no competent evidence was adduced as to the child's financial needs, as required to establish a change of circumstances to warrant an upward modification (see Matter of Brescia v. Fitts, 56 N.Y.2d 132, 140–141, 451 N.Y.S.2d 68, 436 N.E.2d 518 [1982] ; Matter of Fensterheim v. Fensterheim, 55 A.D.2d 516, 516–517, 389 N.Y.S.2d 13 [1st Dept 1976] ).
Contrary to petitioner's contention, the October 6, 2018 petition was properly dismissed without a hearing because she submitted no additional evidence regarding her or the child's residency, or as to how the child's needs were not being met (see Matter of Loveless v. Goldbloom, 141 A.D.3d 662, 663, 35 N.Y.S.3d 456 [2d Dept. 2016] ).
Petitioner failed to preserve her contention that Family Court harbored a bias against her (see Matter of Maureen H. v. Samuel G., 104 A.D.3d 470, 471, 960 N.Y.S.2d 416 [1st Dept. 2013] ). In any event, petitioner failed to sustain her burden to establish that the court's rulings were the result of a bias against her, as the record shows that the court's skepticism of her claims reflects gaps in the proof (see Matter of Lourdes G. v. Julio P., 115 A.D.3d 510, 511, 981 N.Y.S.2d 914 [1st Dept. 2014], lv denied 24 N.Y.3d 1051, 999 N.Y.S.2d 358, 24 N.E.3d 595 [2014] ).