| Matter of Karagiannis v Karagiannis |
| 2010 NY Slip Op 04392 [73 AD3d 1064] |
| May 18, 2010 |
| Appellate Division, Second Department |
| In the Matter of John Karagiannis, Appellant, v AndrianaKaragiannis, 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, Suffolk County (Hoffmann, J.), dated April 13, 2009, which deniedhis objections to an order of the same court (Livrieri, S.M.), dated November 3, 2008, which,after a hearing, dismissed his petition, inter alia, for a downward modification of child support.
Ordered that the order dated April 13, 2009, is affirmed, with costs.
The child support provisions contained in a stipulation of settlement incorporated but notmerged into a judgment of divorce should not be disturbed unless there has been a substantialand unanticipated change in circumstances since the entry of the judgment of divorce (seeMatter of Boden v Boden, 42 NY2d 210, 212-213 [1977]; Matter of Ripa v Ripa, 61 AD3d766 [2009]; Schlakman vSchlakman, 38 AD3d 640, 641 [2007]; Beard v Beard, 300 AD2d 268 [2002]).The party seeking to modify such child support provisions has the burden of establishing that amodification is warranted (see Matter ofMandelowitz v Bodden, 68 AD3d 871, 874 [2009], lv denied 14 NY3d710 [2010]; Matter of Marrale v Marrale, 44 AD3d 773, 775 [2007];Schlakman v Schlakman, 38 AD3d at 641). A "substantial" deterioration in the financialsituation of the party seeking modification between the time of the order and the time amodification is sought may, in some instances, constitute a sufficient change in circumstances towarrant a downward modification (see Matter of Mandelowitz v Bodden, 68 AD3d at874; Matter of Talty v Talty, 42AD3d 546, 547 [2007]). Nevertheless, although a petition for downward modification ofchild support may be granted based on a parent's loss of employment due to an injury or illness,it may be denied when the parent still has the ability to provide support through some other typeof employment (see Matter of Marrale v Marrale, 44 AD3d at 775; Matter of McCarthy v McCarthy, 2AD3d 735 [2003]; Matter of Madura v Nass, 304 AD2d 579, 580 [2003]). Thus, aparty seeking modification on the basis of loss of employment due to illness must show that heor she has made a good faith effort to obtain other employment commensurate with his or herabilities or qualifications (id.). On appeal, credibility determinations of the hearing courtare entitled to great weight and will not be disturbed if supported by the record (see Matter of Piernick v Nazinitsky, 48AD3d 690 [2008]; Matter ofWilkins v Wilkins, 47 AD3d 823, 824 [2008]; Matter of Barrett v Pickett, 5 AD3d 591, 592 [2004]).
Here, the father failed to establish a substantial change in circumstances warranting adownward modification of his support obligation. He testified that he was diagnosed with cancerin [*2]December 2007, and that he was unable to work after thattime due to his illness and treatment. However, he sought reduction of his obligationcommencing only in May 2008, when he filed his petition. In this regard, he testified that hecompleted chemotherapy one month after he filed his petition, and he further testified that hiscancer was in remission. Further, the record supports the Support Magistrate's determination thatthe father failed to present credible evidence at the hearing that his symptoms or condition at thetime of the petition and hearing prevented him from working. Under the circumstances of thiscase and, contrary to the father's contention, the evidence that he was receiving Social Securitydisability benefits did not, by itself, preclude the Family Court from finding that he was capableof working (see Matter of Marrale v Marrale, 44 AD3d at 775; Matter of Bukovinskyv Bukovinsky, 299 AD2d 786, 787-788 [2002]). Further, there is support in the record forthe Support Magistrate's finding that the father failed to submit credible evidence as to his actualincome. Accordingly, the Family Court did not err in denying the father's objections to the orderof the Support Magistrate finding that the father failed to establish a substantial change incircumstances based upon his illness and loss of income that would warrant the relief sought inthe petition (see Matter of Mandelowitz v Bodden, 68 AD3d at 974-875; Matter of Perrego v Perrego, 63 AD3d1072, 1073 [2009]; Matter of Piernick v Nazinitsky, 48 AD3d at 690; Matter ofMarrale v Marrale, 44 AD3d at 775; Matter of Bukovinsky v Bukovinsky, 299AD2d at 787-788).
Finally, the Family Court properly denied the father's objection to the order of the SupportMagistrate denying that branch of his petition which was for an order declaring the parties' olderchild emancipated. The father failed to establish that the older child was emancipated, pursuantto the terms of the parties' stipulation of settlement (see Matter of Calabro v Calabro, 297AD2d 808 [2002]). Fisher, J.P., Dickerson, Eng and Belen, JJ., concur.