| Matter of Gadalinska v Ahmed |
| 2014 NY Slip Op 06082 [120 AD3d 1232] |
| September 10, 2014 |
| Appellate Division, Second Department |
[*1]
| In the Matter of Beata Gadalinska,Respondent, v Abubaker Ahmed, Appellant. |
Abubaker Ahmed, Brooklyn, N.Y., appellant pro se.
In a child support proceeding pursuant to Family Court Act article 4, the fatherappeals from an order of the Family Court, Nassau County (Aaron, J.), dated February 1,2013, which denied his objection to so much of a corrected order of the same court(Bloom, S.M.) dated December 18, 2012, as, without a hearing, in effect, dismissed hispetition for a downward modification of his child support obligation for failure to state acause of action.
Ordered that the order dated February 1, 2013 is reversed, on the law, without costsor disbursements, the father's objection to so much of the corrected order datedDecember 18, 2012 as, without a hearing, in effect, dismissed his petition for adownward modification of his child support obligation for failure to state a cause ofaction is granted, so much of the corrected order dated December 18, 2012 as, in effect,dismissed the father's petition for a downward modification of his child supportobligation is vacated, and the matter is remitted to the Family Court, Nassau County, forfurther proceedings on the father's modification petition.
The parties entered into a stipulation of settlement in July 2010 which provided thatthe mother would have custody of the parties' children and that the father would paychild support in a specified amount each week. The stipulation of settlement wasincorporated but not merged into a subsequent judgment of divorce. The fathersubsequently petitioned for a downward modification of his child support obligation. TheSupport Magistrate, in a corrected order dated December 18, 2012, in effect, dismissedthe father's petition, without a hearing, on the ground that it failed to state a cause ofaction. We reverse.
The parties' stipulation of settlement was executed prior to the effective date of the2010 amendments to Family Court Act § 451 (see L 2010, ch 182,§ 13). Therefore, in order to establish his entitlement to a downwardmodification of his child support obligation, the father had the burden of showing asubstantial and unanticipated change in circumstances since the time he agreed to thesupport amount (see Family Ct Act § 451 [2] [a]; Matter of Dimaio v Dimaio,111 AD3d 933, 933-934 [2013]; Matter of Sabini v Sabini, 105 AD3d 749, 749[2013]).
When determining whether a change in circumstances warranting a modification hasoccurred, courts must consider several factors, including "a loss of income or assets by aparent or a substantial improvement in the financial condition of a parent, and the currentand prior lifestyles of the children" (Shedd v Shedd, 277 AD2d 917, 918 [2000];see Matter of Love v Love, 303 AD2d 756 [2003]). "Child support is not aone-sided obligation placed upon a single parent, but rather an evaluation of the [*2]means and responsibilities of both parents and the needsand best interest of the child" (Matter of Chariff v Carl, 191 AD2d 795, 796[1993]).
Contrary to the Support Magistrate's conclusion, the father's petition was sufficient tostate a cause of action for a downward modification of his child support obligation. Thefather alleged that the mother's income and resources had significantly increased sincethe parties entered into the stipulation of settlement (see Matter of Love v Love,303 AD2d 756 [2003]; Matter of Davis v Vaught, 82 AD2d 805, 805-806[1981]; cf. Matter of Corbisierov Corbisiero, 112 AD3d 625, 626 [2013]). Furthermore, the father had not beenunemployed when the stipulation of settlement was entered, and the father alleged thathis subsequent unemployment, coupled with the depletion of his financial resources,substantially affected his ability to pay the amount that was agreed to in the stipulation(see Matter of Silver vReiss, 74 AD3d 1441 [2010]). Since the allegations in the father's petition, ifsubstantiated, were sufficient to constitute a change in circumstances warranting amodification of his child support obligation, the Support Magistrate should not have, ineffect, dismissed his petition for failure to state a cause of action (see Matter of Green v Silver,96 AD3d 843, 845 [2012]; cf. Reese v Reese, 112 AD3d 602 [2013]). Accordingly,the matter must be remitted to the Family Court, Nassau County, for further proceedings,including a hearing, on the father's modification petition, which shall includeconsideration of the evidence submitted by the father in support of his allegations.Dillon, J.P., Balkin, Miller and Maltese, JJ., concur.