| Basile v Wiggs |
| 2011 NY Slip Op 01964 [82 AD3d 921] |
| March 15, 2011 |
| Appellate Division, Second Department |
| Christopher Basile, Appellant, v Sherry Wiggs,Respondent. |
—[*1] Martin & Colin, P.C., White Plains, N.Y. (William Martin of counsel), for respondent. Anne R. Mueller, West Harrison, N.Y., Attorney for the Child.
In a matrimonial action in which the parties were divorced by judgment dated June 19, 2007,the plaintiff former husband appeals (1) from an order of the Supreme Court, WestchesterCounty (Walker, J.), entered February 3, 2010, which, inter alia, denied his motion to modify aso-ordered stipulation dated January 29, 2009, and to reinstate the terms of a 2006 stipulation ofsettlement relating to access to his daughter, and (2), as limited by his brief, from so much of anamended order of the same court, entered February 4, 2010, as denied his motion for a downwardmodification of his child support obligations.
Ordered that the order entered February 3, 2010, is affirmed; and it is further,
Ordered that the amended order entered February 4, 2010, is affirmed insofar as appealedfrom; and it is further,
Ordered that one bill of costs is awarded to the defendant.
"A parent seeking downward modification of a child support obligation has the burden ofestablishing a substantial and unanticipated change in circumstances. In order to meet thatburden, a party seeking a downward modification based on a loss of employment must submitevidence demonstrating that he or she has diligently sought to obtain employment commensuratewith that party's earning capacity" (Matter of Mera v Rodriguez, 74 AD3d 974, 974 [2010] [citationsomitted]; see Matter of Ripa v Ripa,61 AD3d 766, 766-767 [2009]). "In determining whether there has been a substantial changein circumstances, the change is measured by comparing the payor's financial situation at the timeof the application for a downward modification with that at the time of the order or judgment"(Matter of Prisco v Buxbaum, 275 AD2d 461, 461 [2000]; see Matter of Mandelowitz v Bodden,68 AD3d 871, 874 [2009]). Further, "[a] parent's child support obligation is not [*2]necessarily determined by his or her current financial condition, butrather by his or her ability to provide support, as well as his or her assets and earning powers" (Matter of Talty v Talty, 42 AD3d546, 547 [2007] [internal quotation marks and citations omitted]). In determining whether aparty has established the requisite change of circumstances, a court may "impute income basedupon the party's past income or demonstrated earning potential" (Matter of Ripa v Ripa,61 AD3d at 767).
Here, the Supreme Court found, in effect, that the appellant's financial documentationprovided an incomplete account of his finances. It further found that the appellant, a former lawfirm partner who specialized in corporate transactional work, had the necessary skills and abilityto obtain employment in a different legal practice area. Thus, the Supreme Court found that theappellant failed to establish the requisite change of circumstances warranting a downwardmodification of his child support obligation (see Family Ct Act § 413 [1] [a]).Upon our review of the record, we find no basis to disturb that determination.
The appellant's remaining contentions are without merit. Prudenti, P.J., Eng, Belen andSgroi, JJ., concur.