| Matter of Mandelowitz v Bodden |
| 2009 NY Slip Op 09231 [68 AD3d 871] |
| December 8, 2009 |
| Appellate Division, Second Department |
| In the Matter of David Mandelowitz, Respondent, v AdellaBodden, Appellant. |
—[*1] Lisa Lewis, Brooklyn, N.Y., for respondent.
In a proceeding pursuant to Family Court Act article 4, the mother appeals from an order ofthe Family Court, Kings County (Grosvenor, J.), dated January 6, 2009, which denied herobjections to an order of the same court (La Freniere, S.M.), dated May 23, 2008, which, after ahearing, inter alia, granted those branches of the father's petition which were for a downwardmodification of his child support obligation as set forth in an order of the same court enteredOctober 15, 2007, to the extent of reducing his child support obligation from the sum of $610 permonth to the sum of $25 per month and for a reduction of his child support arrears to the extentof reducing his arrears for the period October 1, 1996, through April 30, 2008, from the sum of$29,179.30 to the sum of $500.
Ordered that the order dated January 6, 2009, is reversed, on the law, without costs ordisbursements, the mother's objections are sustained, the order dated May 23, 2008, is vacated,the petition is denied, and the order entered October 15, 2007, is reinstated.
The mother and the father, who never married, have one child together. In 1996 the mothercommenced a proceeding against the father in the Family Court, Kings County, seeking an orderof support for the child. In response to the petition, the father claimed that he was disabled andawaiting the receipt of Social Security disability benefits.
The Hearing Examiner determined that the father, notwithstanding his health problems, wasable to work in some capacity. In an order dated December 23, 1997, the Hearing Examiner,inter alia, ordered the father to pay the sum of $480 per month in child support retroactive toNovember 1, 1996. The father filed objections to the Hearing Examiner's order, but the FamilyCourt denied his objections. The father appealed from both orders, but this Court dismissed theappeals for failure to prosecute.
In 1998 the father unsuccessfully sought a downward modification of his child supportobligation and an adjustment or cancellation of arrears, with the Hearing Examiner finding, interalia, that the father had failed to substantiate his claim that his health had deteriorated since theentry of the child support order. The father filed objections to the Hearing Examiner's orderdismissing the petition, but the Family Court denied his objections. The father appealed fromboth orders, but this Court dismissed the appeals for failure to prosecute.
In 1999 the father began receiving Social Security disability benefits retroactive to sometime in 1996. Also in 1999, the mother obtained a money judgment against the father for arrearsin the sum of $7,434.96.[*2]
In 2001 the father unsuccessfully sought a downwardmodification of his child support obligation and an adjustment of arrears based on, inter alia, hislack of employment.
In 2003 the Support Collection Unit issued a cost-of-living adjustment (hereinafter COLA)order, which increased the father's monthly support obligation from the sum of $480 to the sumof $547. Around that time, the father unsuccessfully sought a downward modification of hischild support obligation and an adjustment of arrears based on, inter alia, his collection ofdisability benefits, with the Support Magistrate issuing an order dated May 28, 2003, continuingthe father's $547 monthly child support obligation.
In 2004 the father unsuccessfully sought a downward modification of his child supportobligation, with the Support Magistrate issuing an order dated May 12, 2004, again continuingthe father's $547 monthly child support obligation and directing the entry of a money judgmentin favor of the mother and against the father for arrears in the amount of $21,744.34.
In 2007 the Support Collection Unit issued a COLA order that increased the father's monthlysupport obligation from the sum of $547 to the sum of $610.
In 2008 the father filed the instant petition seeking a downward modification of his $610monthly child support obligation as provided for in an order entered October 15, 2007, and anadjustment of arrears. After a hearing, the Support Magistrate granted those branches of thefather's petition which were for a downward modification of his child support obligation as setforth in the order entered October 15, 2007, to the extent of reducing his monthly child supportobligation from the sum of $610 to the sum of $25 and for a reduction of his child supportarrears to the extent of reducing his arrears from the sum of $29,179.30 to the sum of $500. Themother filed objections to the Support Magistrate's order, but the Family Court denied herobjections. The mother appeals.
The party seeking to modify a child support order "has the burden of establishing theexistence of a substantial change in circumstances warranting the modification" (Matter of Marrale v Marrale, 44 AD3d773, 775 [2007] [citations omitted]). Importantly, "[i]n determining whether there has beena substantial change in circumstances, the change is measured by comparing the payor's financialsituation at the time of the application for a downward modification with that at the time of theorder [sought to be modified]" (Matterof Talty v Talty, 42 AD3d 546, 547 [2007] [internal quotation marks and citationsomitted]).
Here, in connection with the mother's 1996 petition that resulted in the original child supportorder of December 23, 1997, the Hearing Examiner found that the father had failed to establishthat he was unable to work in any capacity. While it is undisputed that in or around 1999 thefather began receiving Social Security disability benefits retroactive to a date prior to the entry ofthe original child support order, the father failed to establish in connection with his severalunsuccessful petitions for downward modification of his child support obligation that he is nolonger capable of working in some capacity (see generally Matter of Marrale v Marrale,44 AD3d at 776). Notably, the father failed either to file objections to, appeal from, and/orperfect his appeal from, every child support order entered from the original child support orderthrough the order entered October 15, 2007.
Thus, the Family Court's prior determination that the father is capable of working in somecapacity remained in effect as of October 15, 2007 (see Matter of Meyer v Meyer, 305AD2d 756, 757 [2003]). Therefore, the father was required, in connection with his 2008 petition,to submit evidence of a change in his ability to work in some capacity from October 15, 2007, toMarch 5, 2008, in order to obtain a downward modification of his child support obligation(see id.; see also Matter of Talty v Talty, 42 AD3d at 547).
In that regard, the Support Magistrate herein, relying on certain medical documentssubmitted by the father and his hearing testimony, found, regarding change of circumstances,that the father had provided credible evidence and testimony as to his serious medical conditions,his years of treatment, and his inability to work. However, even if the Support Magistrateproperly considered the medical documents submitted by the father, many of which do not evenqualify as medical records and none of which were certified (see Matter of Bronstein-Becher v Becher, 25 AD3d 796, 797[2006]), nothing in those medical documents, or in the father's hearing testimony, established achange in the father's ability to work in some capacity from October 15, 2007, to March 5, 2008.[*3]
Under such circumstances, the Support Magistrate erredin granting that branch of the father's petition which was for a downward modification of hischild support obligation to the extent of reducing his child support obligation from the sum of$610 per month to the sum of $25 per month, since the father did not submit any evidence of achange in his ability to work in some capacity from October 15, 2007, to March 5, 2008 (seeMatter of Meyer v Meyer, 305 AD2d at 757; see also Matter of Talty v Talty, 42AD3d at 547).
Next, pursuant to Family Court Act § 451, the court "may modify, set aside or vacateany order issued in the course of the proceeding, provided, however, that the modification, setaside or vacatur shall not reduce or annul child support arrears accrued prior to the making of anapplication pursuant to this section." In that regard, contrary to the father's claim, child supportarrears may not be reduced or annulled even where the defaulting party shows good cause forfailing to make an application for relief from the judgment or order of support prior to theaccrual of arrears or where requiring the party to pay the arrears will result in a grievous injustice(see Matter of Dox v Tynon, 90 NY2d 166, 173-174 [1997]).
On the other hand, pursuant to Family Court Act § 413 (1) (g), "[w]here thenon-custodial parent's income is less than or equal to the poverty income guidelines amount for asingle person as reported by the federal department of health and human services, unpaid childsupport arrears in excess of five hundred dollars shall not accrue" (Family Ct Act § 413 [1][g]). Thus, for any period of time that the noncustodial parent's income is below the poverty leveland he or she does not satisfy his child support obligation, "the prohibition against reduction ofaccrued child support arrears contained in section 451 [i]s not triggered because there were noaccrued arrears in excess of $500 to reduce" (Matter of Blake v Syck, 230 AD2d 596,599 [1997]; see Matter of Commissioner of Social Servs. v Campos, 291 AD2d 203, 205[2002]).
Here, based on the father's Social Security disability benefits for the years 1996 through2008 and what the Support Magistrate characterized as the father's rental "profit" (or at timeslack thereof) for the years 2000 through 2008, the Support Magistrate found that the father'sincome for the years 1996 through 2008 was below the poverty level and thus determined thatthe arrears accumulated for the period October 1, 1996, through April 30, 2008, must be cappedat $500 pursuant to Family Court Act § 413 (1) (g). However, even assuming that theSupport Magistrate properly calculated the father's income for the years 2000 through 2008without including the father's entire rental income, the Support Magistrate erred in finding thatthe father's income for the years 1996 through 2008 was below the poverty level based solely onhis Social Security disability benefits and rental profits because that finding impermissiblychanges the prior finding of the Family Court made in connection with the original child supportorder that the father is capable of working in some capacity, and thus able to earn income and tosupport the child, which remained his circumstances as of October 15, 2007 (cf. Matter of John T. v Olethea P., 64AD3d 484 [2009]; Matter of Commissioner of Social Servs. v Campos, 291 AD2dat 203; Matter of Blake v Syck, 230 AD2d at 596). Moreover, as previously stated, thefather failed to establish in connection with the 2008 petition a change in his ability to work insome capacity, and thus to earn income and to support the child, from October 15, 2007, throughMarch 5, 2008.
Under these circumstances, the Support Magistrate erred in granting that branch of thefather's petition which was for a reduction of his child support arrears to the extent of reducinghis arrears for the period October 1, 1996, through April 30, 2008, from the sum of $29,179.30 tothe sum of $500 (see Matter of Sutkowy v J.B., 196 Misc 2d 1005, 1008 [2003]; seealso Matter of Talty v Talty, 42 AD3d at 547). Mastro, J.P., Belen, Hall and Austin, JJ.,concur.