| Matter of Ippolito v Uriarte |
| 2013 NY Slip Op 08247 [112 AD3d 716] |
| December 11, 2013 |
| Appellate Division, Second Department |
| In the Matter of Dominick Ippolito,Appellant, v Marisa Uriarte, Respondent. |
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In a proceeding pursuant to Family Court Act article 4, the father appeals from anorder of the Family Court, Richmond County (Wolff, J.), dated March 14, 2012, whichdenied his objections to an order of the same court (Hickey, S.M.) dated December 14,2011, which, upon findings of fact of the same court also dated December 14, 2011,made after a hearing, denied his petition for a downward modification of his childsupport obligation.
Ordered that the order dated March 14, 2012, is affirmed, without costs ordisbursements.
Parties seeking modifications of support orders have the burden of establishing that asubstantial change in circumstances warrants modification (see Matter of French vGordon, 103 AD3d 722, 722 [2013]; Matter of Suyunov v Tarashchansky, 98 AD3d 744, 745[2012]). Although the loss of employment may in some circumstances constitute asubstantial change warranting modification (see Matter of Rodriguez v Mendoza-Gonzalez, 96 AD3d766, 766-767 [2012]; Matter of Marrale v Marrale, 44 AD3d 773, 775 [2007]),parties seeking a downward modification on that ground must demonstrate that theymade diligent attempts to secure new employment commensurate with their education,ability, and experience (see Family Ct Act § 451 [2]; Matter ofSuyunov v Tarashchansky, 98 AD3d at 745; Matter of Madura v Nass, 304AD2d 579, 580 [2003]).
The Support Magistrate declined to modify the father's child support obligation.Although the father had lost his job, he was meeting his support obligation, and theSupport Magistrate found that his testimony was incredible with respect to his monthlyexpenses and his attempts to obtain new employment. On appeal, deference should begiven to credibility determinations of the Support Magistrate, who was in the bestposition to evaluate the credibility of the witnesses (see Matter of Suyunov vTarashchansky, 98 AD3d at 745; Matter of Kirchain v Smith, 84 AD3d 1237, 1237 [2011]).The Support Magistrate's credibility finding is supported by the record and should not bedisturbed (see Matter of Ganskyv Gansky, 103 AD3d 894, 895 [2013]; Matter of Penninipede v Penninipede, 6 AD3d 445,446-447 [2004]).
Additionally, the father, who was represented by counsel, failed to object toproceeding with the fact-finding hearing on a date that he now asserts was set only forthe exchange of discovery (seeMatter of Michelle F.F. v Edward J.F., 50 AD3d 348, 350 [2008]).[*2]
Accordingly, the Family Court did notimprovidently exercise its discretion in denying the father's objections to the SupportMagistrate's order dated December 14, 2011 (see id.; Matter of Madura vNass, 304 AD2d at 580). Skelos, J.P., Balkin, Leventhal and Sgroi, JJ., concur.