| Matter of Rodriguez v Mendoza-Gonzalez |
| 2012 NY Slip Op 04348 [96 AD3d 766] |
| June 6, 2012 |
| Appellate Division, Second Department |
| In the Matter of Louis Rodriguez, Jr., Appellant, v NormaMendoza-Gonzalez, Respondent. |
—[*1]
In a child support proceeding pursuant to Family Court Act article 4, the father appeals froman order of the Family Court, Nassau County (Singer, J.), dated September 27, 2011, whichdenied his objections to an order of the same court (Miller, S.M.), dated July 11, 2011, which,after a hearing, dismissed his petition for a downward modification of his child supportobligation.
Ordered that the order dated September 27, 2011, is affirmed, without costs ordisbursements.
The Family Court may modify a prior order or judgment of child support or maintenancepayments upon a showing of a "substantial change in circumstance[s]" (Domestic Relations Law§ 236 [B] [9] [b] [1]; see Matterof Sannuto v Sannuto, 21 AD3d 901 [2005]; Klapper v Klapper, 204 AD2d 518[1994]; Dowd v Dowd, 178 AD2d 330 [1991]). The party seeking to modify such childsupport provisions has the burden of establishing that a modification is warranted (see Matter of Mandelowitz v Bodden,68 AD3d 871 [2009]; Matter ofMarrale v Marrale, 44 AD3d 773 [2007]). A substantial deterioration in the financialsituation of the party seeking modification between the time of the order and the time amodification is sought may, in some instances, constitute a sufficient change in circumstances towarrant a downward modification (see Matter of Mandelowitz v Bodden, 68 AD3d at874; Matter of Talty v Talty, 42AD3d 546 [2007]). Nevertheless, although a petition for downward modification of childsupport may be granted based on a party's loss of employment due to an injury or illness, it maybe denied when the party still has the ability to provide support through some other type ofemployment (see Matter of Marrale v Marrale, 44 AD3d at 775; Matter of McCarthy v McCarthy, 2AD3d 735 [2003]; Matter of Madura v Nass, 304 AD2d 579 [2003]). Thus, a partyseeking modification on the basis of loss of employment due to illness must show that he or sheis incapable of working or has made a good faith effort to obtain other employmentcommensurate with his or her abilities or qualifications (see Matter of Marrale v Marrale,44 AD3d at 775; Matter of McCarthy v McCarthy, 2 AD3d at 735; Matter of Madurav Nass, 304 AD2d 579 [2003]). On appeal, credibility determinations of the hearing court areentitled to deference (see Matter ofPiernick v Nazinitsky, 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 adownward modification of his support obligation. He testified that he was disabled as a result ofa car accident and that he was unable to work due to his disability. However, the father failed to[*2]present credible evidence that his symptoms or condition atthe time of the petition and hearing prevented him from working. Contrary to the father'scontention, and under the circumstances of this case, the evidence that he was receiving SocialSecurity disability benefits did not, by itself, preclude the Family Court from finding that thefather failed to establish that he was incapable of working (see Matter of Aranova v Aranov, 77 AD3d 740, 740-742 [2010];Matter of Marrale v Marrale, 44 AD3d at 775; Matter of Bukovinsky vBukovinsky, 299 AD2d 786 [2002]). Dillon, J.P., Eng, Austin and Sgroi, JJ., concur.