| Matter of Freedman v Horike |
| 2009 NY Slip Op 08916 [68 AD3d 1205] |
| December 3, 2009 |
| Appellate Division, Third Department |
| In the Matter of Mark Freedman, Appellant, v Regan Horike,Respondent. (And Another Related Proceeding.) |
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Mercure, J. Appeal from an order of the Family Court of Columbia County (Czajka, J.),entered January 6, 2009, which, among other things, granted respondent's application, in twoproceedings pursuant to Family Ct Act article 4, to hold petitioner in willful violation of a priorcourt order.
The underlying facts of this matter are more fully set forth in our three prior decisionsinvolving the parties' disputes over the custody and support of their children (see Matter of Horike v Freedman, 37AD3d 978 [2007]; Matter ofFreedman v Horike, 29 AD3d 1093 [2006]; Matter of Freedman v Horike, 26 AD3d 680 [2006]). Briefly, theparties are the divorced parents of two children (born in 1990 and 1998). Following our mostrecent decision, they entered into a stipulation of settlement, memorialized in an order uponconsent dated December 19, 2007, which provided that the total amount of child supportarrearage as of June 2007—approximately $50,000—would "be in judgment," andthat all underlying child support would continue but petitioner (hereinafter the father) was notbarred from filing a future petition to modify support due after June 29, 2007.
On December 31, 2007, the father commenced the first of these proceedings, seeking adownward modification of child support, asserting that his employment had terminated and hisincome was below the poverty level. Shortly thereafter, respondent (hereinafter the mother) fileda petition alleging that the father willfully violated a September 2006 support order. The father[*2]also filed orders to show cause seeking reinstatement of hisdriving privileges and vacatur of an order dismissing another support modification petition.
Following a hearing, a Support Magistrate dismissed the father's petition and motions, andfound the father in willful violation of the prior order. Family Court denied the father'sobjections to the Support Magistrate's determination, prompting this appeal.
We affirm. With respect to the father's argument that he did not willfully violate the priorsupport order, it is undisputed that he did not meet his support obligations. Thus, he bore theburden of demonstrating "his inability to make the required payments" by "competent, credibleevidence" (Matter of Powers v Powers, 86 NY2d 63, 70 [1995]; see Matter of Vickery v Vickery, 63AD3d 1220, 1221 [2009]). Furthermore, in connection with his request for a modification ofsupport, it was the father's burden to "establish a sufficient change in circumstances warrantingthe requested downward modification" (Matter of Heyn v Burr, 6 AD3d 781, 782 [2004]). Particularlyrelevant here, a child support obligation turns on a parent's ability to provide support, rather thanthe parent's current financial situation (see Matter of Latimer v Cartin, 57 AD3d 1264, 1265 [2008];Matter of Heyn v Burr, 6 AD3d at 782).
In our view, the father has failed to meet these burdens. Although the father indicates that heis disabled and on public assistance but nonetheless engaged in a diligent job search, we notethat he failed to submit any competent medical proof to support his claim of disability (seeMatter of Vickery v Vickery, 63 AD3d at 1221; Matter of Holbert v Rifanburg, 39 AD3d 902, 903 [2007]).Furthermore, Family Court found that the proof of his actual income and the diligence of hisefforts to find employment was insufficient, and that his testimony regarding the same lackedcredibility. In any event, the father's long-standing, voluntary reduction of his income andconcomitant receipt of public assistance do not constitute a substantial change in circumstancesherein. According due deference to the trier of fact, we conclude that the record amply supportsFamily Court's determination that respondent willfully violated the prior support order and that adownward modification of support was unwarranted (see Matter of Vickery v Vickery,63 AD3d at 1221; Matter of Latimer v Cartin, 57 AD3d at 1265; Matter of Holbert vRifanburg, 39 AD3d at 903; Matter of Heyn v Burr, 6 AD3d at 782-783).
The father's remaining arguments are either rendered academic by our decision, unpreserved,not properly before us or, upon consideration, have been found to be lacking in merit.
Cardona, P.J., Spain, Malone Jr. and Kavanagh, JJ., concur. Ordered that the order isaffirmed, without costs.