| Matter of Gavin v Worner |
| 2013 NY Slip Op 08628 [112 AD3d 928] |
| December 26, 2013 |
| Appellate Division, Second Department |
| In the Matter of Susan Gavin,Appellant, v Lawrence J. Worner, Respondent. |
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In a child support proceeding pursuant to Family Court Act article 4, the motherappeals from an order of the Family Court, Orange County (Kiedaisch, J.), dated January7, 2013, which denied her objections to an order of the same court (Krahulik, S.M.),dated November 5, 2012, which, after a hearing, denied her petition for a downwardmodification of her child support obligation.
Ordered that the order dated January 7, 2013, is affirmed, without costs ordisbursements.
The Family Court may modify a prior order of child support upon a showing of a"substantial change in circumstance[s]" (Domestic Relations Law § 236 [B] [9] [b][1]; see Matter of Rodriguez vMendoza-Gonzalez, 96 AD3d 766, 766 [2012]; Matter of Sannuto v Sannuto,21 AD3d 901, 902-903 [2005]). The party seeking to modify a child support orderhas the burden of establishing that a modification is warranted (see Matter of Mandelowitz vBodden, 68 AD3d 871, 874 [2009]; Matter of Marrale v Marrale, 44 AD3d 773 [2007]).Although a petition for downward modification of child support may be granted based ona party's loss of employment due to an injury or illness, it may be denied when themoving 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 vMcCarthy, 2 AD3d 735 [2003]; Matter of Madura v Nass, 304 AD2d579, 580 [2003]). Thus, a party seeking modification on the basis of loss of employmentdue to illness must show that he or she is incapable of working or has made a good faitheffort to obtain other employment commensurate with his or her abilities or qualifications(see Matter of Marrale v Marrale, 44 AD3d at 775; Matter of McCarthy vMcCarthy, 2 AD3d at 735; Matter of Madura v Nass, 304 AD2d at 580). Thecredibility determinations of the hearing court are entitled to great weight on appeal andwill not be disturbed if supported by the record (see Matter of Piernick v Nazinitsky, 48 AD3d 690 [2008];Matter of Wilkins vWilkins, 47 AD3d 823, 824 [2008]; Matter of Barrett v Pickett, 5 AD3d 591 [2004]).
Here, the mother failed to establish that a substantial change in circumstances hadoccurred since the entry of the prior child support order warranting a downwardmodification of her support obligation. She testified that she was disabled as a result ofspinal stenosis and that she was unable to work due to her disability. However, she failedto present credible evidence that her symptoms or condition at the time of the petitionand hearing prevented her from working. Contrary [*2]tothe mother's contention, the evidence that she was receiving Social Security disabilitybenefits did not, by itself, preclude the Family Court from finding that the mother failedto establish that she 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).
The mother's remaining contentions are without merit.
Accordingly, the Family Court did not err in denying the mother's objections to theorder of the Support Magistrate finding that the mother failed to establish a substantialchange in circumstances based upon her illness and loss of income that would warrantthe relief sought in the petition (see Matter of Aranova v Aranov, 77 AD3d at741-742; Matter of Perrego vPerrego, 63 AD3d 1072 [2009]; Matter of Piernick v Nazinitsky, 48AD3d at 690; Matter of Marrale v Marrale, 44 AD3d at 775). Mastro, J.P., Lott,Austin and Roman, JJ., concur.