| Matter of Kasun v Peluso |
| 2011 NY Slip Op 01660 [82 AD3d 769] |
| March 1, 2011 |
| Appellate Division, Second Department |
| In the Matter of Theresa K. Kasun, Respondent, v EdwardDaniel Peluso, Appellant. |
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In a child support proceeding pursuant to Family Court Act article 4, the father appeals, aslimited by his brief, from stated portions of an order of the Family Court, Queens County (Hunt,J.), dated November 30, 2009, which, inter alia, in effect, granted the mother's objections tostated portions of an order of the same court (Fondacaro, S.M.), dated January 28, 2008, which,among other things, "terminate[d] the [father's] maintenance obligation under the judgment ofdivorce dated October 31, 2002 and the Family Court order dated August 26, 2004 whichincorporates the maintenance order," vacated that portion of the order dated January 28, 2008, ineffect, denied the father's objections to stated portions of the order dated January 28, 2008, and,in effect, remitted the matter to the Support Magistrate to recalculate the maintenance arrearsowed to the mother.
Ordered that the order is modified, on the law and the facts, by deleting the provisionsthereof, in effect, granting that portion of the mother's objections to so much of the order datedJanuary 28, 2008, as "terminate[d] the [father's] maintenance obligation under the judgment ofdivorce dated October 31, 2002 and the Family Court order dated August 26, 2004 whichincorporates the maintenance order," vacating that portion of the order dated January 28, 2008,and, in effect, remitting the matter to the Support Magistrate to recalculate the maintenancearrears owed to the mother; as so modified, the order is affirmed insofar as appealed from,without costs or disbursements.
The father filed a petition seeking a downward modification of his child support obligation,and the mother filed a petition to adjudge the father in willful violation of the order of support.After a hearing before a Support Magistrate, both petitions were granted. Both parties filedobjections to the order of the Support Magistrate, and the Family Court granted the mother'sobjections to the extent of, among other things, vacating so much of the Support Magistrate'sorder as terminated the father's obligation to pay maintenance and granted the father a downwardmodification of his child support obligation from the sum of $281.25 per week to the sum of$145 per week, and thereupon only granted the father a downward modification of his childsupport from the sum of $281.25 per week to the sum of $221 per week, and remitted the matterto the Support Magistrate for recalculation of maintenance arrears owed to the mother. The fatherappeals.
The father is correct that the Family Court erred in vacating that "the portion of the SupportMagistrate's order dated January 28, 2008 which terminates the [father's] maintenance obligationunder [*2]the judgment of divorce dated October 31, 2002 andthe Family Court order dated August 26, 2004 which incorporates the maintenance order," andremitting the matter to the Support Magistrate to recalculate the maintenance arrears owed to themother. The record reveals that the father's obligation to pay maintenance had been terminated inan earlier order of the Support Magistrate, dated January 31, 2006, to which the mother did notfile objections. "The hearing of objections in Family Court is the equivalent of an appellatereview" (Matter of Musarra vMusarra, 28 AD3d 668, 668 [2006]). The mother, having failed to file objections to theorder dated January 31, 2006, which terminated the father's maintenance obligation, waived herright to review of that determination. Since the issue was not properly before the Family Court onits review of the order dated January 28, 2008, we must delete the provisions of the FamilyCourt's order which, in effect, reinstated the father's maintenance obligation and remitted thematter to the Support Magistrate to calculate maintenance arrears owed to the mother.
However, we agree with the Family Court's modification of so much of the SupportMagistrate's order as granted the father a downward modification of his child support obligation,by reducing his child support obligation only to the sum of $221 per week, instead of to the sumof $145 per week. The party seeking to modify a child support order "has the burden ofestablishing the existence of a substantial change in circumstances warranting the modification"(Matter of Marrale v Marrale, 44AD3d 773, 775 [2007]). Importantly, "[i]n determining whether there has been a substantialchange in circumstances, the change is measured by comparing the payor's financial situation atthe time of the application for a downward modification with that at the time of the order [soughtto be modified]" (Matter of Talty vTalty, 42 AD3d 546, 547 [2007] [internal quotation marks and citations omitted]; Matter of Mandelowitz v Bodden, 68AD3d 871 [2009]).
Here, the only change in circumstances which the father established was that he wasreceiving $76 less a week in Social Security disability benefits than he had been receiving inworkers' compensation benefits. We reject the father's contention that the Family Courtimproperly imputed income to him, as that determination was based upon a credibilityassessment which is supported by the record (see Matter of Strella v Ferro, 42 AD3d 544 [2007]). Moreover, theFamily Court's recalculation of the father's child support obligation, taking into account hisreduced benefits, was proper (see Family Ct Act § 413 [1] [c]).
The father's failure to pay child support constituted prima facie evidence of a willfulviolation of the support order, and shifted the burden of proof to him to offer competent, credibleevidence of his inability to comply with the order (see Family Ct Act § 454 [3] [a];Matter of Powers v Powers, 86 NY2d 63 [1995]). Since the father failed to satisfy thatburden with credible evidence, his violation of the order of support was properly determined tohave been willful. Moreover, since the father's violation of the order was found to be willful, themother was properly awarded an attorney's fee in connection with the violation petition (seeFamily Ct Act § 438 [b]).
The father's remaining contentions are without merit. Prudenti, P.J., Eng, Belen and Sgroi,JJ., concur.