| Matter of Nieves-Ford v Gordon |
| 2008 NY Slip Op 00696 [47 AD3d 936] |
| January 29, 2008 |
| Appellate Division, Second Department |
| In the Matter of Roslyn Nieves-Ford,Respondent, v Michael Gordon, Appellant. |
—[*1] Roslyn Nieves, named herein as Roslyn Nieves-Ford, Elmont, N.Y., respondent prose.
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.), entered May 5, 2006, which denied hisobjections to eight orders of the same court (Bannon, S.M.), seven dated December 1, 2005, andone dated April 24, 2006, inter alia, denying his petition for a downward modification of childsupport and granting the mother an attorney's fee.
Ordered that the order is affirmed, with costs.
In 1997 the father filed a petition seeking a downward modification of his child supportobligation. Following a hearing, the Support Magistrate denied the petition on the ground that thefather had caused his own inability to pay child support. This Court reversed an order of theFamily Court, Nassau County, denying the father's objections to the Support Magistrate's denialof his petition (see Matter of Nieves v Gordon, 264 AD2d 446 [1999]), and remitted thematter to the Family Court, Nassau County, for a new hearing and determination. In reversing,this Court found that the Support Magistrate had erred in refusing to allow the father to examinethe mother with respect to the actual expenses of the child. Upon remittitur, a new hearing washeld and a new determination made.
The party seeking modification of a support order has the burden of establishing theexistence of a substantial change in circumstances warranting the modification (see Matter of Marrale v Marrale, 44AD3d 773 [2007]; Carr v Carr, 187 AD2d 407, 408 [1992]). In exercising itsdiscretion whether to modify a child support order, the Family Court may consider variousfactors, including "a loss of income or assets by a parent or a substantial [*2]improvement in the financial condition of a parent" (Matter ofBrescia v Fitts, 56 NY2d 132, 141 [1982] [citations omitted]; see Family Ct Act§ 451). Significantly, the court may consider whether a supporting parent's claimedfinancial difficulties are the result of that parent's intentional conduct (see Matter of Knights vKnights, 71 NY2d 865 [1988]; Matter of Fries v Price-Yablin, 209 AD2d 1002, 1003[1994]).
It is undisputed that the father caused his own inability to pay child support due to hiswrongful conduct resulting in the termination of his employment in 1994. Moreover, it isundisputed that between the termination of his employment in 1994 and the filing of themodification petition in 1997, the father made no attempt to obtain gainful employment.Furthermore, on remittitur, the father failed to establish a substantial improvement in themother's financial condition warranting a reduction in child support. Accordingly, the FamilyCourt properly denied the father's objections to the denial of his petition for downwardmodification.
In a child support proceeding pursuant to Family Court Act article 4, the court, in itsdiscretion, may award an attorney's fee to the attorney representing the person who is claiming aright to support on behalf of the child (see Family Ct Act § 438; Sampson vGlazer, 109 AD2d 831 [1985]; Carter v Carter, 65 AD2d 765 [1978]). As with anaward of an attorney's fee made pursuant to Domestic Relations Law § 237 (b), the courtwill base its decision primarily upon both parties' ability to pay, the nature and extent of theservices required to deal with the support dispute, and the reasonableness of their performanceunder the circumstances (see McCann v Guterl, 100 AD2d 577 [1984]; Matter ofBarnes v Barnes, 54 AD2d 963 [1976]). Under appropriate circumstances, to be determinedon a case by case basis, the court may consider whether the more financially secure litigant is, infact, merely waging a campaign of legal harassment against the more needy party (see Arditov Ardito, 97 AD2d 830 [1983]).
In the instant case, the father's actions constituted a campaign of legal harassment.Accordingly, the Support Magistrate did not improvidently exercise its discretion in awarding themother an attorney's fee.
The father's remaining contentions are without merit. Ritter, J.P., Florio, McCarthy andDickerson, JJ., concur.