| Matter of Nuesi v Gago |
| 2009 NY Slip Op 09666 [68 AD3d 1122] |
| December 22, 2009 |
| Appellate Division, Second Department |
| In the Matter of Fernando Nuesi, Appellant, v Iradi Gago,Respondent. |
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In a child support proceeding pursuant to Family Court Act article 4, the father appeals froman order of the Family Court, Kings County (Hamill, J.), dated October 8, 2008, which deniedhis objection to an order of the same court (Fasone, S.M.) dated August 12, 2008, which, after ahearing, dismissed his petition for a downward modification of his child support obligation.
Ordered that the order dated October 8, 2008 is reversed, on the law, without costs ordisbursements, the father's objection is granted, the order dated August 12, 2008 is vacated, andthe matter is remitted to the Family Court, Kings County, for a new hearing solely on the issue ofthe father's ability to pay the amount of support in the judgment of divorce and a newdetermination of the petition for a downward modification.
The father's contention that the Support Magistrate failed to conduct a proper hearing on theissue of emancipation is without merit. The father and mother were sworn and examined, andfindings of fact were made regarding emancipation (cf. Matter of Pringle v Pringle, 296AD2d 828 [2002]; Waby v Waby, 143 AD2d 506 [1988]; Matter of Reynolds vReynolds, 50 AD2d 993 [1975]). "A hearing need not follow any particular form, but anymeaningful hearing must, at least, consist of an adducement of proof coupled with anopportunity to rebut it" (Waby v Waby, 143 AD2d 506 [1988] [internal quotation marksomitted]; see Matter of Thompson v Thompson, 59 AD3d 1104 [2009]).
Here, the father was given an opportunity to provide the court with proof as to the child'semancipation, but failed to do so (cf. Matter of Ademovic v Reid, 1 AD3d 899 [2003][hearing examiner did not allow father to speak in support of his modification petition, andsummarily denied the petition]).
However, the Support Magistrate erred in failing to permit the father to submit evidenceregarding his current financial situation. The father was not given an opportunity to provideproof that he was unable to pay the current amount of child support. There was no claim that thefather's financial records should be excluded on the grounds that he refused to obey a disclosureorder, or failed to disclose information that ought to have been disclosed (see CPLR3126; Matter of Greenidge v Greenidge, 56 AD3d 473 [2008]; Matter of Pena vDiaz, 275 AD2d 415 [2000]). Accordingly, the matter must be remitted to the Family Court,Kings County, for a new hearing on the issue of the father's ability to pay support, followed[*2]by a new determination of the petition for a downwardmodification.
The father's remaining contention is without merit. Rivera, J.P., Dickerson, Hall and Lott,JJ., concur.