| Matter of Scarduzio v Ryan |
| 2011 NY Slip Op 05962 [86 AD3d 573] |
| July 12, 2011 |
| Appellate Division, Second Department |
| In the Matter of Christine Scarduzio, Respondent, v KevinRyan, Appellant. |
—[*1] Christine Scarduzio, Cortlandt Manor, N.Y., respondent pro se.
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 (Klein,J.), entered September 23, 2010, as denied his objections to so much of an order of the samecourt (Krahulik, S.M.), dated May 25, 2010, as, after a hearing, denied his petition for adownward modification of his child support obligation.
Ordered that the order entered September 23, 2010, is modified, on the law, by deleting theprovision thereof denying the father's objection to so much of the order dated May 25, 2010, asdenied so much of his petition as sought a downward modification of the sum he was obligatedto pay as 50% of the child care expenses commencing January 7, 2010, and substituting therefora provision granting his objection to that portion of the order dated May 25, 2010; as somodified, the order entered September 23, 2010, is affirmed insofar as appealed from, withoutcosts or disbursements, and the matter is remitted to the Family Court, Westchester County, forfurther proceedings consistent herewith.
The party seeking modification of a support order has the burden of establishing theexistence of a substantial change in circumstances warranting the modification (see Matter of Marrale v Marrale, 44AD3d 773 [2007]; Carr v Carr, 187 AD2d 407, 408 [1992]). A change in theexpenses for the child may constitute such a change in circumstances (see Matter of Ryan v Levine, 80 AD3d767 [2011]; McMahon vMcMahon, 19 AD3d 464 [2005]; Matter of Elia v Elia, 299 AD2d 358 [2002]).Pursuant to Family Court Act § 413 (1) (c) (4), "[w]here the custodial parent is working. . . and incurs child care expenses as a result thereof, the court shall determinereasonable child care expenses and such child care expenses, where incurred, shall be prorated[and] [e]ach parent's pro rata share of the child care expenses shall be separately stated andadded" to the parent's basic child support obligation.
Here, it is undisputed that the child care expenses had decreased significantly since the orderof support had been issued, due to the child attending school full time. Accordingly, the fathershould only be required to pay his share of the child care expenses actually incurred by themother commencing January 7, 2010, the date that the father filed his petition for a downwardmodification of his child support obligation (see Shanon v Patterson, 294 AD2d 485[2002]; McBride v [*2]McBride, 238 AD2d 320 [1997]).
We reject the father's argument that the costs of the after-school program and summer campin which the child is enrolled do not qualify as child care expenses. The father has offered noevidence to refute the mother's contention that these programs provide care for the child whileshe is at work. Accordingly, those programs qualify as child care expenses consistent with thepurpose of Family Court Act § 413 (1) (c) (4).
The father's remaining contentions are without merit.
We remit the matter to the Family Court, Westchester County, for a hearing to determine theamount of child care expenses actually incurred by the mother commencing January 7, 2010, andfor the recalculation of arrears. Skelos, J.P., Belen, Hall and Roman, JJ., concur.