Matter of Brunetti v Brunetti

2005 NYSlipOp 07530

October 11, 2005

Appellate Division, Second Department

In the Matter of Joseph P. Brunetti, Appellant, v Catherine Brunetti, Respondent.

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In a child support proceeding pursuant to Family Court Act article 4, the petitioner appeals from an order of the Family Court, Orange County (Kiedaisch, J.), entered September 14, 2004, which denied his objections to an order of the same court (Braxton, S.M.) dated June 4, 2004, which, after a hearing, denied his petition for a downward modification of his child support obligation.

Ordered that the order is affirmed, with costs.

"Absent a showing of an unanticipated and unreasonable change in circumstances, the support provisions of [a child support] agreement should not be disturbed" (Matter of Boden v Boden, 42 NY2d 210, 213 [1977]; Gross v Gross, 15 AD3d 442 [2005]). "Moreover, where the application is one for a downward modification of child support, such a change in circumstances must be 'substantial' " (Praeger v Praeger, 162 AD2d 671, 673 [1990]). The proper amount of support payable is determined not by a parent's current economic situation, but, inter alia, by a parent's earning powers (see Beard v Beard, 300 AD2d 268, 269 [2002]). In this case, the Support Magistrate properly determined that the father was capable of earning the level of income upon which the order of support was based. Accordingly, the petition for a downward modification was properly denied. S. Miller, J.P., Ritter, Rivera and Skelos, JJ., concur.