| Matter of Silver v Reiss |
| 2010 NY Slip Op 04687 [74 AD3d 1441] |
| June 3, 2010 |
| Appellate Division, Third Department |
| In the Matter of Gregory L. Silver, Respondent, v Kathryn M.Reiss, Appellant. |
—[*1] Judith A. Pareira, Saranac Lake, for respondent.
Rose, J. Appeal from an order of the Family Court of Essex County (Meyer, J.), enteredDecember 17, 2008, which granted petitioner's application, in a proceeding pursuant to FamilyCt Act article 4, for modification of a prior child support order.
In November 2005, the parties stipulated that the child support obligation of petitioner(hereinafter the father) would be based upon imputed annual income of $28,667. Although thefather was then essentially unemployed, two years earlier his income from a business ofrespondent (hereinafter the mother) had been approximately $60,000. Based on that prior incomeand the father's hopes for future employment, the parties agreed to his annual income and thecorresponding child support amount. This agreement was later incorporated, but not merged, intoa judgment of divorce. In 2007, after the father's attempts to obtain steady employment failed, hepetitioned for a downward modification of child support. The Support Magistrate dismissed thepetition for the father's failure to show a sufficient change in circumstances, but Family Courtreversed that determination and reduced the amount of child support after finding a sufficientchange in circumstances in the father's unsuccessful efforts to obtain employment and thedepletion of his other financial resources. The mother appeals, arguing that because the fatherhad been unemployed when he stipulated to the amount of child support, his continuedunemployment does not constitute an unanticipated change in circumstances.[*2]
We affirm. The parent seeking modification of anagreed-upon child support order has the burden to "establish a sufficient change in circumstanceswarranting the requested downward modification" (Matter of Heyn v Burr, 6 AD3d 781, 782 [2004]). A parent'sinability to secure new work after losing employment may constitute an unanticipated andunreasonable change of circumstances where the award of support was premised upon aparticular amount of income (see e.g.Matter of Perry v Pica, 22 AD3d 903, 904 [2005]; Matter of Mancini vBorowicz, 271 AD2d 789, 791 [2000]). Here, although the father was not employed whenthe amount was agreed upon, the record shows that the child support amount was based upon hisagreed-upon imputed income and his expectation that he would soon secure employment. Hewas only able to meet his support obligations, however, by exhausting the $35,000 distributiveaward that he had received upon the divorce. Accordingly, we decline to disturb Family Court'sconclusion that the father established a sufficient change in circumstances and hardshipwarranting a modification of child support (see Matter of Fuller v Fuller, 11 AD3d 775, 777 [2004]; Cynoske v Cynoske, 8 AD3d 720,722-723 [2004]; Matter of De Luca v Randall, 285 AD2d 684, 685 [2001]; Matter ofMancini v Borowicz, 271 AD2d at 792; Matter of Talandis v Talandis, 233 AD2d689, 690 [1996]).
Peters, J.P., Stein, McCarthy and Garry, JJ., concur. Ordered that the order is affirmed,without costs.