| Matter of Latimer v Cartin |
| 2008 NY Slip Op 10086 [57 AD3d 1264] |
| December 24, 2008 |
| Appellate Division, Third Department |
| In the Matter of James A. Latimer, Appellant, v Terrie J. Cartin, Knownas Terrie J. Latimer, Respondent. |
—[*1] Jondavid S. Delong, St. Lawrence County Department of Social Services, Canton, forrespondent.
Malone Jr., J. Appeal from an order of the Family Court of St. Lawrence County (Rogers, J.),entered March 26, 2007, which partially granted petitioner's application, in a proceeding pursuant toFamily Ct Act article 4, for modification of a prior child support order.
Petitioner (hereinafter the father) and respondent (hereinafter the mother) were married in 1979and divorced in 1994. As is pertinent here, a 2000 Family Court order set forth the father's supportobligation with respect to three of the parties' minor children who resided with the mother. However,after being charged with professional misconduct by the Bureau of Professional Medical Conduct, thefather voluntarily surrendered his license to practice medicine in 2005. Two months later, the father fileda petition for downward modification of his child support obligation on the basis of, among other things,the surrender of his license and a subsequent loss of income and earning capacity.[FN1]Following a hearing, the Support Magistrate [*2]concluded, amongother things, that the father had failed to meet his burden of proving an involuntary and unavoidablechange in financial circumstances or that he made reasonable and diligent efforts to obtain employment,and declined to downwardly modify his support obligation on these grounds. Family Court denied thefather's objections to the Support Magistrate's order, prompting this appeal.[FN2]
Initially, we reject the mother's contention that appellate review is precluded due to the father'sfailure to timely file objections to the Support Magistrate's order (see Family Ct Act §439 [e]). Strict adherence to the deadlines of Family Ct Act § 439 (e) is not required and we donot find Family Court's decision to review the merits of the father's objections—which were filedone day after the statutory deadline—to have been an abuse of discretion (see Rossiter v Rossiter, 56 AD3d1011, 1011-1012 [2008]; Matter of Ogborn v Hilts, 262 AD2d 857, 858 [1999]).
Turning to the merits, "[a] child support obligation is not determined solely by a parent's currentfinancial situation, but by his or her ability to provide support and, in the absence of a good-faith effortto seek reemployment after job loss, modification of the parent's [child] support obligation isunwarranted" (Matter of Freedman vHorike, 26 AD3d 680, 682 [2006]; see Matter of Bianchi v Breakell, 48 AD3d 1000, 1003 [2008]; Matter of Holscher v Holscher, 4 AD3d629, 630 [2004], lv denied 3 NY3d 606 [2004]). Upon our review, and according duedeference to the trier of fact on issues of credibility (see Matter of Holscher v Holscher, 4AD3d at 630), we find that the record amply supports the Support Magistrate's determination that thefather failed to make reasonable and diligent efforts to obtain employment and, accordingly, a reductionof his support obligation was unwarranted (see Matter of Freedman v Horike, 26 AD3d at682).
The father's remaining contentions, including his claims regarding the circumstances of the surrenderof his license to practice medicine and his assertion that the Support Magistrate improperly precludedhim from presenting certain evidence at trial, have been considered and found to be either without meritor rendered academic due to the decision herein.
Mercure, J.P., Carpinello, Rose and Kane, JJ., concur. Ordered that the order is affirmed, withoutcosts.
Footnote 1: The father also sought modificationof his child support obligation because one of the children was due to turn 21. His support wasmodified on this basis, and this modification is not at issue on appeal.
Footnote 2: To the extent that the father's noticeof appeal contains an inaccurate date of entry for Family Court's order, we will exercise our discretionand treat the notice as valid (see CPLR 5520 [c]; Matter of West Beekmantown Neighborhood Assn., Inc. v Zoning Bd. ofAppeals of Town of Beekmantown, 53 AD3d 954, 955 n [2008]).