| Matter of Ripa v Ripa |
| 2009 NY Slip Op 03003 [61 AD3d 766] |
| April 14, 2009 |
| Appellate Division, Second Department |
| In the Matter of Barbara Ripa, Respondent, v Dennis Ripa,Appellant. |
—[*1]
In a child support proceeding pursuant to Family Court Act article 4, the father appeals froman order of the Family Court, Suffolk County (Budd, J.), dated April 29, 2008, which denied hisobjections to an order of the same court (Buse, S.M.), dated January 15, 2008, denying, after ahearing, his petition to modify the child support provision of a judgment of divorce entered April10, 2003.
Ordered that the order is affirmed, without costs or disbursements.
The Family Court properly denied the father's objections to the Support Magistrate's orderdenying his petition to modify the child support provision contained in a stipulation of settlementwhich was incorporated but not merged into the parties' judgment of divorce (seeDomestic Relations Law § 236 [B] [9] [b]; Beard v Beard, 300 AD2d 268[2002]; Brevetti v Brevetti, 182 AD2d 606 [1992]). The child support provisionscontained in a settlement agreement should not be disturbed unless there is a substantial,unanticipated, and unreasonable change in circumstances since the entry of the divorce judgment(see Matter of Boden v Boden, 42 NY2d 210, 212-213 [1977]; Schlakman v Schlakman, 38 AD3d640, 641 [2007]; Beard v Beard, 300 AD2d 268 [2002]). Here, the burden was onthe father to show that he used his best efforts to obtain employment commensurate with hisqualifications and experience after losing his job (see Matter of Navarro v Navarro, 19 AD3d 499, 500 [2005]; Matter of Clarke v Clarke, 8 AD3d272 [2004]; Beard v Beard, 300 AD2d 268 [2002]; Matter of Yepes v Fichera,230 AD2d 803 [1996]). The record supports the Support Magistrate's finding that the fatherfailed to establish a change in circumstances that would warrant a downward modification of hischild support obligation (see Matter ofMuselevichus v Muselevichus, 40 AD3d 997 [2007]; Matter of Meyer v Meyer,205 AD2d 784 [1994]). In determining whether such a change of circumstances has beenshown, [*2]a court need not rely upon the party's account of hisor her finances, but may also impute income based upon the party's past income or demonstratedearning potential (see Matter of Graves v Smith, 284 AD2d 332 [2001];Zabezhanskaya v Dinhofer, 274 AD2d 476 [2000]; Matter of Diamond v Diamond,254 AD2d 288 [1998]). Here, the Support Magistrate found, in effect, that the father's taxreturns and other financial documentation provided an incomplete account of his finances. Inaddition, at the hearing there was a "failure of proof as to exact circumstances under which thefather lost his former employment, whether it was due to his fault, and whether he used his bestefforts to obtain new employment commensurate with his qualifications and experience" (Matter of Clarke v Clarke, 8 AD3d272, 272-273 [2004]; see Matter ofNavarro v Navarro, 19 AD3d 499, 500 [2005]; Beard v Beard, 300 AD2d 268[2002]). Accordingly, the Family Court properly denied the father's petition to modify the childsupport provision.
The father's remaining contention, that the court erred in failing to reduce the amount ofchild support arrears, is not properly before this Court, since the father did not appeal from theorder denying his objections to the order fixing the amount of the arrears. Dillon, J.P.,Angiolillo, Leventhal and Chambers, JJ., concur.