| Matter of Grucci v Villanti |
| 2013 NY Slip Op 05209 [108 AD3d 626] |
| July 10, 2013 |
| Appellate Division, Second Department |
| In the Matter of Michael J. Grucci,Appellant, v Christine M. Villanti, Respondent. |
—[*1] Christine M. Villanti, South Huntington, N.Y., respondent pro se.
In a proceeding pursuant to Family Court Act article 4, the father appeals from anorder of the Family Court, Suffolk County (Hoffmann, J.), dated October 12, 2011,which denied his objections to two orders of the same court (Fields, S.M.), both datedAugust 24, 2011, which, after a hearing, denied his petition for a downward modificationof an order of child support dated December 13, 2006, determined that he willfullyviolated the order of child support, and, in effect, denied his motion to recuse the SupportMagistrate from the hearing.
Ordered that the order dated October 12, 2011, is affirmed, with costs.
The Family Court properly denied the father's objections to the Support Magistrate'sorders. The father, as the party seeking modification of a support order entered onconsent, had the burden of showing that there had been a substantial change incircumstances (see Matter ofAnderson v Anderson, 92 AD3d 779 [2012]; Matter of Ceballos v Castillo,85 AD3d 1161 [2011]). The father failed to prove a change of circumstanceswarranting modification of his support obligation, and the Family Court properly deniedhis modification petition.
The father claimed that he should no longer be required to pay support because themother had alienated the child from him. Under the doctrine of constructiveemancipation, a child of employable age who actively abandons the noncustodial parentby refusing all contact and visitation may forfeit any entitlement to support (see Schulman v Schulman, 101AD3d 1098 [2012]; Matterof Gold v Fisher, 59 AD3d 443 [2009]). However, a child's reluctance to see aparent is not abandonment (see Schulman v Schulman, 101 AD3d at 1098; Matter of Glen L.S. v DeborahA.S., 89 AD3d 856 [2011]; Matter of Turnow v Stabile, 84 AD3d 1385 [2011]; Kordes v Kordes, 70 AD3d782 [2010]). There is no evidence in the record that the child has refused all contactand visitation with the father. The Support Magistrate did not err in excluding testimonyregarding events that occurred before the December 13, 2006, order of support. Thoseevents could not show a change in circumstances after the entry of the support order.
The mother established that the father had willfully violated the order of support.Proof that a respondent in a Family Court Act article 4 proceeding has failed to pay childsupport as ordered is sufficient to establish a prima facie case of willful violation,shifting to the respondent the [*2]burden of goingforward (see Matter of Powers v Powers, 86 NY2d 63, 68-69 [1995]; Matter of Kaplan v Kaplan,102 AD3d 873 [2013]; Matter of Marra v Hernandez, 102 AD3d 699 [2013]).Here, the father acknowledged that he had not paid his share of the child's college tuition,as required by the order of support. The father failed to rebut the presumption of hisability to pay college expenses as ordered (see Family Ct Act § 437). Thefact that the child had taken out student loans, and the father's belief that the motherwould use funds earmarked for tuition for other purposes, were irrelevant for the purposeof determining whether the father had violated the order of support.
The Support Magistrate did not err in denying the father's motion for her to recuseherself. The father's counsel acknowledged at the hearing that there was no legal basisfor disqualification of the Support Magistrate. Where no legal basis for disqualificationunder Judiciary Law § 14 is alleged, a court is the sole arbiter of the need forrecusal, and its decision is a matter of discretion and personal conscience (see Matter of McGrath vD'Angio, 85 AD3d 794 [2011]; Matter of Alyssa A. [Michelle N. — Sandra N.], 79AD3d 740 [2010]; Matterof O'Donnell v Goldenberg, 68 AD3d 1000 [2009]). The father failed to setforth any proof of bias or prejudgment to warrant the conclusion that the SupportMagistrate's refusal to recuse herself was an improvident exercise of discretion (seeMatter of Alyssa A. [Michelle N. — Sandra N.], 79 AD3d at 740; Matterof O'Donnell v Goldenberg, 68 AD3d at 1000).
The father's remaining contentions are either without merit or improperly raised forthe first time on appeal (see CPLR 5501; Matter of Stone v Stone, 236AD2d 615 [1997]). Balkin, J.P., Leventhal, Lott and Sgroi, JJ., concur.