| Matter of Ceballos v Castillo |
| 2011 NY Slip Op 05695 [85 AD3d 1161] |
| June 28, 2011 |
| Appellate Division, Second Department |
| In the Matter of Juan Carlos Ceballos, Appellant, v BerthaA. Castillo, Respondent. (Proceeding No. 1.) In the Matter of Westchester County Commissionerof Social Services, on Behalf of Bertha A. Castillo, Respondent, v Juan Carlos Ceballos,Appellant. (Proceeding No. 2.) |
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In two related child support proceedings pursuant to Family Court Act article 4, the fatherappeals (1), as limited by his brief, from so much of an order of the Family Court, WestchesterCounty (Jordan, S.M.), entered January 11, 2010, made after a hearing, as denied his petition fordownward modification of his child support obligation as set forth in a prior order of the samecourt dated April 11, 2005, entered on consent, determined that he willfully violated the childsupport order dated April 11, 2005, and recommended that he be incarcerated for a period of sixmonths unless he purged the contempt as directed by the Family Court at the confirmationproceeding, (2) from an order of the same court (Horowitz, J.), entered April 13, 2010, whichdenied his objections to the order entered January 11, 2010, and (3) from an order ofcommitment of the same court (Horowitz, J.), dated July 9, 2010, which, upon, in effect,confirming the finding of willfulness, directed that he be incarcerated in the Westchester CountyJail for a period of six months with the opportunity to purge his contempt by payment of the sumof $1,140.
Ordered that the appeal from the order entered January 11, 2010, is dismissed, without costsor disbursements, as that order was superseded by the orders entered April 13, 2010 and datedJuly 9, 2010, respectively; and it is further,
Ordered that the order entered April 13, 2010, is modified, on the law and on the facts, bydeleting the provision thereof denying the father's objections to so much of the order enteredJanuary 11, 2010, as denied his petition for downward modification of his child supportobligations as set forth in the child support order dated April 11, 2005, and substituting therefor aprovision granting those objections and vacating the provision of the order entered January 11,2010, denying the father's petition for downward modification of his child support obligation; asso modified, the order entered April 13, 2010, is affirmed, without costs or disbursements, andthe matter is remitted to the Family Court, Westchester County, for a hearing and determinationof the amount of the father's reduced child support obligation; and it is further,[*2]
Ordered that the order of commitment dated July 9, 2010,is reversed, on the law and on the facts, without costs or disbursements, and the mother's petitionto adjudicate the father in willful violation of the child support order dated April 11, 2005, isdenied.
To establish entitlement to a downward modification of a child support order entered onconsent, a party has the burden of showing that there has been a substantial change incircumstances (see Matter of Getty vGetty, 83 AD3d 835 [2011]; Matter of Kasun v Peluso, 82 AD3d 769 [2011]; Matter of Jewett v Monfoletto, 72AD3d 688 [2010]). Loss of employment may at times constitute a substantial change incircumstances (see Baker v Baker,83 AD3d 977 [2011]; Matter ofGetty v Getty, 83 AD3d 835 [2011]). A party seeking a downward modification of his orher child support obligation based upon a loss of employment has the burden of demonstratingthat he or she diligently sought to obtain employment commensurate with his or her earningcapacity (see Matter of Belmonte vDreher, 77 AD3d 937 [2010]).
Here, the father testified that he is unable to pay child support because he has not workedsince 2008 and is not eligible to receive unemployment benefits. More specifically, he stated thathe had been working for the Renaissance Hotel until May 2008, but that he left that job after thehotel significantly cut back his hours. He thereafter obtained employment at a pizzeria, where hewas initially able to work longer hours. Although he was eventually let go from his position atthe pizzeria, he did not, contrary to the Support Magistrate's finding, quit the pizzeria job. Thefather further testified in detail that he attempted to obtain employment at various specifiedrestaurants and supermarkets; that he went to an employment agency called Labor Ready to finda job; that he looked for employment in newspapers and the "Pennysaver" publication; and thathe explored job leads which he learned of via word-of-mouth.
Under these circumstances, the father demonstrated that his loss of employment constituted asubstantial change in circumstances, and that he made a good faith effort to obtain newemployment which was commensurate with his qualifications and experience (see Matter of Getty v Getty, 83 AD3d835 [2011]; Matter of Awwad vAwwad, 62 AD3d 695 [2009]). Hence the Support Magistrate's determination that thefather failed to satisfy his burden of establishing an inability to pay his child support obligation isnot supported by the evidence. Accordingly, the father's objections to the denial of his petitionfor downward modification of his child support obligations should have been granted.
To the extent that the father filed objections to the Support Magistrate's finding of willfulnessand her recommendation of a term of incarceration of six months, the denial of those objectionswas proper, since the Support Magistrate's recommendations had no force and effect untilconfirmed by the Family Court Judge (see Matter of Dakin v Dakin, 75 AD3d 639, 639-640 [2010];see also Matter of Roth v Bowman, 245 AD2d 521 [1997]; Family Ct Act § 1112).
Upon, in effect, confirming the willfulness finding, the Family Court issued an order ofcommitment directing that the father be committed to the Westchester County Jail unless hepurged his contempt by paying the sum of $1,140 to the Support Collection Unit. The father'sfailure to pay child support constituted prima facie evidence of a willful violation (seeFamily Ct Act § 454 [3] [a]). This prima facie showing shifted the burden to the fatherto come forward with competent, credible evidence that his failure to pay support in accordancewith the terms of the order on consent was not willful (see Matter of Powers v Powers,86 NY2d 63, 69 [1995]; see also Matterof Rube v Tornheim, 67 AD3d 916 [2009]).
"In the absence of proof of an ability to pay, an order of commitment for willful violation ofa support order may not stand" (Matterof Grasso v LaRocca, 54 AD3d 760 [2008]). Based upon the evidence on this record,the father met his burden of establishing his inability to meet his child support obligation setforth in the order dated April 11, 2005. The evidence did not support the Support Magistrate'sfinding that the father had the means, resources, and ability to pay child support, but chose not doso (see Matter of Mazzilli v Mazzilli, 248 AD2d 474 [1998]).
In light of our determination, we need not address the father's remaining contentions. Skelos,J.P., Dickerson, Hall and Sgroi, JJ., concur.