| Matter of Fragola v Alfaro |
| 2007 NY Slip Op 09030 [45 AD3d 684] |
| November 13, 2007 |
| Appellate Division, Second Department |
| In the Matter of Raphael F. Fragola, Appellant, v AliceAlfaro, Respondent. |
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In a child support proceeding pursuant to Family Court Act article 4, the father appeals froman order of the Family Court, Nassau County (Marks, J.), dated December 29, 2006, whichdenied his objections to an order of the same court (Dwyer, S.M.), dated September 29, 2006,which, after a hearing, denied his petition for a downward modification of his child supportobligation.
Ordered that the order is affirmed, without costs or disbursements.
"A downward modification of a parent's child support obligation may be granted where theparent demonstrates a substantial and unanticipated change in circumstances" (Matter of Muselevichus vMuselevichus, 40 AD3d 997, 998 [2007]; see Matter of Brescia v Fitts, 56NY2d 132, 138 [1982]; Matter ofFowler v Rivera, 40 AD3d 1093, 1094 [2007]; Matter of Yepes v Fichera, 230AD2d 803, 804 [1996]). "A parent's loss of employment may constitute such a change incircumstances, justifying a downward modification, where the termination occurred through nofault of the parent and the parent has diligently sought re-employment" (Matter ofMuselevichus v Muselevichus, 40 AD3d at 998; see Matter of Fowler v Rivera, 40AD3d at 1094; Matter of Davis vDavis, 13 AD3d 623, 624 [2004]; Matter of Yepes v Fichera, 230 AD2d at 804;Matter of Meyer v Meyer, 205 AD2d 784 [1994]). "The proper amount of support to bepaid, however, is determined not by the parent's current economic situation, but by the parent'sassets and earning capacity" (Matter of Muselevichus v Muselevichus, 40 AD3d at998-999; see Hickland v Hickland, 39 NY2d 1, 5-6 [1976], cert denied 429 US941 [1976]; Beard v Beard, 300 AD2d 268, 269 [2002]; Matter of Yepes vFichera, 230 AD2d at 804). "Therefore, a parent seeking a downward modification based ona loss of employment must demonstrate that he or she has made[*2]'a good-faith effort to obtain employment commensurate with his orher qualifications and experience' " (Matter of Muselevichus v Muselevichus, 40 AD3dat 999, quoting Beard v Beard, 300 AD2d at 269; see Matter of Yepes v Fichera,230 AD2d at 804). " 'Great deference should be given to the determination of the SupportMagistrate, who is in the best position to assess the credibility of the witnesses and the evidenceproffered' " (Matter of Accettulli vAccettulli, 38 AD3d 766, 767 [2007], quoting Matter of Musarra v Musarra, 28 AD3d 668, 669 [2006]; see Matter of Luther v Luther, 35AD3d 473 [2006]; Matter of Galativ Galati, 27 AD3d 737, 738 [2006]).
The Family Court's denial of the father's petition for a downward modification of his childsupport obligation is supported by the record. The court properly considered the father's assets,including his real estate holdings and his bank account, as well as his earning capacity, anddetermined that, under the circumstances, the father was not entitled to a downward modification(see generally Hickland v Hickland, 39 NY2d at 5-6, cert denied 429 US 941[1976]; Matter of Muselevichus v Muselevichus, 40 AD3d at 998-999; Beard vBeard, 300 AD2d at 269; Matter of Yepes v Fichera, 230 AD2d at 804).Accordingly, under the particular circumstances presented here, the Family Court properly deniedthe father's petition for downward modification.
The father's remaining contentions are without merit. Schmidt, J.P., Rivera, Santucci andBalkin, JJ., concur.