| Matter of Bianchi v Breakell |
| 2008 NY Slip Op 01667 [48 AD3d 1000] |
| February 28, 2008 |
| Appellate Division, Third Department |
| In the Matter of Marie Bianchi, Respondent, v David E. Breakell,Appellant. (Proceeding No. 1.) In the Matter of David E. Breakell, Appellant, v MarieBianchi, Respondent. (Proceeding No. 2.) |
—[*1] William V. O'Leary, Albany, for respondent.
Peters, J. Appeals (1) from an order of the Family Court of Albany County (Duggan, J.),entered June 9, 2006, which, among other things, granted petitioner's motion, in proceeding No.1 pursuant to Family Ct Act article 4, to withdraw her request for a cost of living adjustment torespondent's child support obligation, and (2) from an order of said court, entered October 16,2006, which dismissed respondent's application, in proceeding No. 2 pursuant to Family Ct Actarticle 4, for modification of a prior child support order.
Having previously reviewed this matter (23 AD3d 947 [2005]), we remitted to Family Courtfor further proceedings to specifically address the income it imputed to respondent (hereinafterthe father) after a hearing which was triggered by his objection to a cost of living adjustment(hereinafter COLA). At that time, the father's petition seeking a downward modification of hischild support obligation was pending. The matter now returns to us after Family Court granted amotion by petitioner (hereinafter the mother) to withdraw her COLA request and, therefore,proceeded to a hearing where a determination was made that the father failed to demonstrate asubstantial change in circumstances to support his modification petition.
Recognizing the procedural posture of proceeding No. 1 and that CPLR 3217 permits avoluntary discontinuance of a claim by court order "upon terms and conditions, as the courtdeems proper" (CPLR 3217 [b]; see Tucker v Tucker, 55 NY2d 378, 383 [1982]), wefind that Family Court had the requisite authority to grant the mother's motion, in the absence ofspecial circumstances or "[p]articular prejudice to the [father] or other improper consequencesflowing from discontinuance" (Tucker v Tucker, 55 NY2d at 383; see Christenson vGutman, 249 AD2d 805, 806 [1998]). Family Court properly discerned, over the father'sobjection, that the discontinuance of the COLA proceeding would not be prejudicial to him as hispending modification petition remained.
In seeking a downward modification of the prior order of child support in proceeding No. 2,the father was required to demonstrate a substantial change in circumstances warranting such amodification since the 1998 order of support (see Matter of Freedman v Horike, 26 AD3d 680, 682 [2006]; Matter of Carr v Carr, 19 AD3d839, 843 [2005]). The father is a college graduate with a degree in civil engineering. From1980 until 1995, he worked for construction businesses either partially or fully owned by hisfather. From 1995 to 2001, the father was self-employed as a general contractor throughManasota Construction, earning a gross annual income of $50,000 to $100,000. He asserts thathis annual net income from the business was only 25% to 30% of the gross. He had noemployment income in the 2001 and 2002 years because he chose not to work in order to care forhis newly born child. Thereafter, the father became employed as a general contractor with LDBAssociates, a company owned by his father and current wife, working approximately 40 to 60hours per week and receiving an annual salary of $35,000, which was what his father "offered[him] to take over the position."
"It is well settled that a parent's child support obligation is determined by his or her ability toprovide support, rather than the parent's current financial situation" (Matter of Rubley v Longworth, 35AD3d 1129, 1130 [2006], lv denied 8 NY3d 811 [2007] [citations omitted]; seeMatter of Freedman v Horike, 26 AD3d at 682; McMillen v Miller, 15 AD3d 814, 816 [2005]). Here, the SupportMagistrate found that the father remains employable and able to work in the construction field,where he earned between $50,000 to $100,000 from 1995 to 2001. Despite the father's assertionsto the contrary, the record makes clear that the Support Magistrate did not mistakenly base thefather's earning potential upon the gross revenue of his business, instead of the net income afterexpenses, but rather chose to discredit his testimony in this respect. Notably, the father neverproffered any tax returns or W-2 forms to substantiate his uncorroborated claims that he netted ameager 25% to 30% of the gross annual income. "Given the paucity of proof in this record, thatdecision was largely a credibility determination to which this Court will accord deference" (Matter of Holscher v Holscher, 4 AD3d629, 630 [2004], lv denied 3 NY3d 606 [2004] [citations omitted]; see Matter ofFrowein v Murray, 298 AD2d 647, 648 [2002]).
Finding that the father had previously earned significantly more income at the time of theprior support order than his reported $35,000 current salary, it was within Family Court'sdiscretion to deny him a downward modification of the support order due to his failure to seek[*2]more lucrative employment outside of his family and moreconsistent with his education and experience. A petition for downward modification of childsupport " 'may be denied when the moving party has not made a good faith effort to obtainemployment commensurate with his or her qualifications' " (Matter of Madura v Nass,304 AD2d 579, 580 [2003], quoting Matter of Musumeci v Musumeci, 295 AD2d 516,516 [2002]). The father has, at all times, chosen to work for either himself or his family and hasmade no attempt to pursue a position in the engineering field for which he holds a degree.Having "failed to use his best efforts to obtain a . . . position which would utilizehis education and skills" (Matter of Yepes v Fichera, 230 AD2d 803, 804 [1996]; see Hall v Hall, 22 AD3d 979, 981[2005]; Matter of Bouchard v Bouchard, 263 AD2d 775, 777 [1999]), the father'sclaimed inability to meet his support obligations on his current salary is a self-created hardship,brought about by his own actions or inactions, which is insufficient to establish entitlement to adownward modification (see Hall v Hall, 22 AD3d at 981; Matter of Crystal vCorwin, 274 AD2d 683, 685 [2000]; Matter of Sutphin v Dorey, 233 AD2d 698, 699[1996]).[FN*]
Finally, finding no error in Family Court's rejection of the conclusions reached by the father'sforensic expert and its rejection of the father's assertions that his accumulation of debt and sale ofassets constitute a substantial change in circumstances, we decline to disturb the court'sdetermination.
Cardona, P.J., Carpinello, Rose and Malone Jr., JJ., concur. Ordered that the orders areaffirmed, without costs.
Footnote *: Likewise, although the fatherpartially attributes his inability to meet his support obligation to the fact that he did not workduring 2001 and 2002 to care for his child, " '[a] voluntary decision by a parent to reduce his orher income is not a change of circumstances warranting the reduction of a child supportobligation' " (Matter of Reach v Reach, 307 AD2d 512, 513 [2003], quoting Matter ofCrosby v Hickey, 289 AD2d 1013, 1014 [2001]; see Matter of Sutphin v Dorey, 233AD2d at 699).