| Matter of Dimaio v Dimaio |
| 2013 NY Slip Op 07969 [111 AD3d 933] |
| November 27, 2013 |
| Appellate Division, Second Department |
| In the Matter of Francesco Dimaio,Appellant, v Maureen Dimaio, Respondent. |
—[*1] Schpoont & Cavallo, LLP, New York, N.Y. (Carrie Anne Cavallo of counsel), forrespondent.
In a child support proceeding pursuant to Family Court Act article 4, the fatherappeals from an order of the Family Court, Queens County (McGowan, J.), datedDecember 21, 2012, which denied his objections to an order of the same court (Kaur,S.M.) dated September 25, 2012, which, after a hearing, denied his petition for adownward modification of his child support obligation.
Ordered that the order dated December 21, 2012, is reversed, on the facts, with costs,the father's objections to the order dated September 25, 2012, are granted, the order datedSeptember 25, 2012, is vacated, the father's petition is granted, and the matter is remittedto the Family Court, Queens County, for a hearing and a determination thereafter of theamount of the father's reduced child support obligation.
The parties' stipulation of settlement, which was incorporated but not merged into theparties' judgment of divorce, and which set forth the father's child support obligation,was executed prior to the effective date of the 2010 amendments to Family Court Act§ 451. Therefore, in order to establish his entitlement to a downward modificationof his child support obligation, the father had the burden of showing a substantial andunanticipated change in circumstances since the time he agreed to the support amount(see Family Ct Act § 451 [2] [a]; L 2010, ch 182, § 13; Matter of Sabini v Sabini, 105AD3d 749 [2013]; Matterof Belmonte v Dreher, 77 AD3d 937 [2010]; Schlakman v Schlakman, 38AD3d 640, 641 [2007]). Loss of employment may at times constitute a substantialand unanticipated change in circumstances (see Baker v Baker, 83 AD3d 977, 978 [2011]; Matterof Belmonte v Dreher, 77 AD3d at 937). A party seeking a downward modificationof his or her child support obligation based upon a loss of employment has the burden ofdemonstrating that he or she diligently sought to obtain employment commensurate withhis or her earning capacity (see Matter of Belmonte v Dreher, 77 AD3d at 937).
Here, the father testified that he is unable to pay child support because he lost hisprior job in October 2010. More specifically, he stated that he had been working at arestaurant in the dual capacity of manager and head waiter. Following his loss of thatemployment, he sought and [*2]obtained a position as amanager at a restaurant at a lesser salary, but could not find a position working in thedual capacity of manager and head waiter.
Under these circumstances, the father demonstrated that his loss of employment andobtainment of new employment at a lesser salary constituted a substantial andunanticipated change in circumstances, and that he made a good faith effort to obtainnew employment which was commensurate with his qualifications and experience (see Matter of Ceballos vCastillo, 85 AD3d 1161, 1163 [2011]; Matter of Getty v Getty, 83 AD3d 835 [2011]). Thus, theSupport Magistrate's determination that the father failed to satisfy his burden ofestablishing an inability to pay his monthly child support obligation of $2,500, which hadbeen set in the parties' judgment of divorce, is not supported by the evidence.Accordingly, the father's objections to the Support Magistrate's order denying his petitionfor a downward modification of his child support obligation should have been granted.
The parties' remaining contentions either are without merit or need not be reached inlight of our determination. Rivera, J.P., Angiolillo, Hall and Cohen, JJ., concur.