| Matter of Aranova v Aranov |
| 2010 NY Slip Op 07333 [77 AD3d 740] |
| October 12, 2010 |
| Appellate Division, Second Department |
| In the Matter of Stella Aranova, Respondent, v Dimitriy Aranov,Appellant. In the Matter of Dimitriy Aranov, Appellant, v Stella Aranova,Respondent. |
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In related child support proceedings pursuant to Family Court Act article 4, the father appeals froman order of the Family Court, Queens County (Richroath, J.), dated July 1, 2009, which denied hisobjections to an order of the same court (Kirshblum, S.M.), dated March 27, 2009, which, after ahearing, dismissed his petition for a downward modification of his child support obligation.
Ordered that the order is affirmed, without costs or disbursements.
The Family Court may modify a prior order or judgment of child support or maintenance paymentsupon a showing of a "substantial change in circumstance[s]" (Domestic Relations Law § 236 [B][9] [b]; see Matter of Sannuto vSannuto, 21 AD3d 901 [2005]; Klapper v Klapper, 204 AD2d 518 [1994];Dowd v Dowd, 178 AD2d 330 [1991]). The party seeking to modify such child supportprovisions has the burden of establishing that a modification is warranted (see Matter of Mandelowitz v Bodden, 68AD3d 871 [2009]; Matter of Marrale vMarrale, 44 AD3d 773 [2007]). A substantial deterioration in the financial situation of theparty seeking modification between the time of the order and the time a modification is sought may, insome instances, constitute a sufficient change in circumstances to warrant a downward modification(see Matter of Mandelowitz v Bodden, 68 AD3d at 874; Matter of Talty v Talty, 42 AD3d 546 [2007]). Nevertheless, although apetition for downward modification of child support may be granted based on a parent's loss ofemployment due to an injury or illness, it may be denied when the parent still has the ability to providesupport through some other type of employment (see Matter of Marrale v Marrale, 44 AD3dat 775; Matter of McCarthy vMcCarthy, 2 AD3d 735 [2003]; Matter of Madura v Nass, 304 AD2d 579 [2003]).Thus, a party 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 her abilitiesor qualifications (see Matter of Marrale v Marrale, 44 AD3d at 775; Matter of McCarthy v McCarthy, 2 AD3d735 [2003]; Matter of Madura v Nass, 304 AD2d 579 [2003]). On appeal, credibilitydeterminations of the hearing court are entitled to great weight and will not be disturbed if supported bythe record (see Matter of Piernick vNazinitsky, 48 AD3d 690 [2008]; Matter of Wilkins v Wilkins, 47 AD3d 823 [2008]; Matter of Barrett v Pickett, 5 AD3d591 [2004]).
Here, the father failed to establish a substantial change in circumstances warranting a downwardmodification of his support obligation. He testified that he was disabled due to a mental health conditionand that he was unable to work due to his illness. However, the father was working for a period of timeduring which he alleged that he was disabled. The record supports the Support Magistrate'sdetermination that the father failed to present credible evidence at the hearing that his symptoms orcondition at the time of the petition and hearing prevented him from working. Under the circumstancesof this case 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 capable ofworking (see Matter of Marrale v Marrale, 44 AD3d at 775; Matter of Bukovinsky vBukovinsky, 299 AD2d 786 [2002]). Further, there is support in the record for the SupportMagistrate's finding that the father failed to set aside money from a legal settlement for the support ofthe children. Accordingly, the Family Court did not err in denying the father's objections to the order ofthe Support Magistrate finding that the father failed to establish a substantial change in circumstancesbased upon his illness and loss of income that would warrant the relief sought in the petition (seeMatter of Mandelowitz v Bodden, 68 AD3d at 874-875; Matter of Perrego v Perrego, 63 AD3d 1072 [2009]; Matter ofPiernick v Nazinitsky, 48 AD3d at 690; Matter of Marrale v Marrale, 44 AD3d at 775;Matter of Bukovinsky v Bukovinsky, 299 AD2d at 787-788). Prudenti, P.J., Angiolillo, Belenand Sgroi, JJ., concur.