| Matter of Gravenese v Marchese |
| 2008 NY Slip Op 10623 [57 AD3d 992] |
| December 30, 2008 |
| Appellate Division, Second Department |
| In the Matter of Helma J. Gravenese, Respondent, v PaulM. Marchese, Appellant. |
—[*1] Helma J. Gravenese, Old Westbury, N.Y., respondent pro se.
In a support proceeding pursuant to Family Court Act article 4, the father appeals from anorder of the Family Court, Nassau County (Dane, J.), dated February 7, 2008, which denied hisobjections to an order of the same court (Watson, S.M.), dated December 13, 2007, granting,after a hearing, the mother's petition for an upward modification of his child support obligationand directing him, inter alia, to pay child support in the sum of $225 per week.
Ordered that the order dated February 7, 2008 is reversed, on the law, with costs, the father'sobjections are sustained, the order dated December 13, 2007 is vacated, and the matter isremitted to the Family Court, Nassau County, for further proceedings in accordance herewith.
The Family Court previously granted the father's petition for a downward modification of hischild support obligation, which had been set in a settlement agreement that was incorporated, butnot merged, into the parties' judgment of divorce. The father's support obligation was modified tothe sum of $50 a month on the basis of the dissolution of his business which occurred through nofault of his own. The downward modification was affirmed by this Court (see Matter ofMarchese v Marchese, 11 AD3d 546 [2004]). The mother subsequently petitioned for anupward modification of the father's child support obligation, alleging there had been a substantialchange in circumstances.
"When a party seeks to modify the child support provision of a prior order or judgment, he orshe must demonstrate a substantial change in circumstance. It is the burden of the moving partyto establish the change in circumstance warranting the modification. In determining whetherthere has been a substantial change in circumstances, the change is measured by comparing thepayor's financial situation at the time [*2]of the application for a. . . modification with that at the time of the order or judgment" (Matter of Taltyv Talty, 42 AD3d 546, 547 [2007] [internal quotation marks and citations omitted]; seealso Matter of Nieves-Ford v Gordon, 47 AD3d 936 [2008]; Matter of Heyward vGoldman, 23 AD3d 468 [2005]; McMahon v McMahon, 19 AD3d 464 [2005]).
In order for the Support Magistrate to have determined that there was a substantial change incircumstances on this record, there must have been an imputation of income or financial abilityto the father. A Support Magistrate has considerable discretion in determining whether to imputeincome to a parent (see Matter of Genender v Genender, 51 AD3d 669 [2008]). Wherethe Support Magistrate determines that a parent's account of his or her finances or ability to payis not credible, the Support Magistrate may impute a higher true or potential income (seeMatter of Maharaj-Ellis v Laroche, 54 AD3d 677 [2008]; Matter of Kristy Helen T. vRichard F.G., 17 AD3d 684 [2005]). " 'However, in exercising the discretion to imputeincome to a party, a Support Magistrate is required to provide a clear record of the source fromwhich the income is imputed and the reasons for such imputation' " (Matter of Barnett vRuotolo, 49 AD3d 640, 640 [2008] [citation omitted]; see also Matter of Genender vGenender, 40 AD3d 994 [2007]). A sufficient record is necessary as the imputation ofincome "will be rejected where the amount imputed was not supported by the record, or theimputation was an improvident exercise of discretion" (Matter of Ambrose v Felice, 45AD3d 581, 582 [2007]). Here, the Support Magistrate did not specify the amount of incomeimputed to the father, did not specify the source from which such income might have beenderived, and failed to give any reason for the imputation of income.
As there were other errors made in the determination of the petition, the matter may not beremitted simply for the Support Magistrate to specify the omitted information. The assertion ofthe father in a visitation proceeding that he was ready to resume parental responsibilities did notestablish that he had the means to pay the child support ordered by the Support Magistrate. TheSupport Magistrate also erred in determining that the father's support obligation should be thesum originally provided for in the settlement agreement that was incorporated into the judgmentof divorce. That agreement clearly provides that the "Child Support Guidelines" would beapplied if the father was no longer employed by a certain named entity or a similar enterprise.The record shows that the father is employed on a part-time basis by his father's business.
Accordingly, we remit the matter to the Family Court, Nassau County, for a de novodetermination of the mother's petition for an upward modification. If the mother is able toestablish that the father's true or potential income is such that there has been a substantial changein circumstances, the father's support obligation shall be determined by the application of theChild Support Standards Act to the combined parental income. Mastro, J.P., Angiolillo, Carniand Eng, JJ., concur.