| Matter of Mera v Rodriguez |
| 2010 NY Slip Op 05007 [74 AD3d 974] |
| June 8, 2010 |
| Appellate Division, Second Department |
| In the Matter of Moises Mera, Appellant, v GloriaRodriguez, Respondent. |
—[*1] Proskauer Rose LLP, New York, N.Y. (Steven H. Holinstat of counsel), and Joanne N.Sirotkin, White Plains, N.Y., for respondent (one brief filed).
In a child support proceeding pursuant to Family Court Act article 4, the father appeals, aslimited by his brief, from so much of an order of the Family Court, Westchester County (Edlitz,J.), entered May 26, 2009, as denied his objections to so much of an order of the same court(Furman, S.M.), entered April 10, 2009, as, after a hearing, denied his petition for a downwardmodification of his child support obligation and directed him to pay child support arrears in thesum of $3,630.
Ordered that the order entered May 26, 2009, is affirmed insofar as appealed from, withoutcosts or disbursements.
A parent seeking downward modification of a child support obligation has the burden ofestablishing a substantial and unanticipated change in circumstances (see Matter of Gedacht v Agulnek, 67AD3d 1013 [2009]). In order to meet that burden, a party seeking a downward modificationbased on a loss of employment must submit evidence demonstrating that he or she has diligentlysought to obtain employment commensurate with that party's earning capacity (id.). Inaddition, "[i]n determining whether there has been a substantial change in circumstances, thechange is measured by comparing the payor's financial situation at the time of the application fora downward modification with that at the time of the order [sought to be modified]" (Matter of Mandelowitz v Bodden, 68AD3d 871, 874 [2009], lv denied 14 NY3d 710 [2010]). Here, the father failed toestablish a substantial and unanticipated change in circumstances or diligent job search efforts.Furthermore, the father failed to establish that he was entitled to have his child support arrearsreduced or eliminated (see Matter ofBetancourt v Betancourt, 71 AD3d 764 [2010]; Dembitzer v Rindenow, 35 AD3d 791 [2006]; Matter of Telferv Maher, 270 AD2d 494 [2000]). Prudenti, P.J., Skelos, Florio and Sgroi, JJ., concur.