| Matter of Lagani v Li |
| 2015 NY Slip Op 07029 [131 AD3d 1246] |
| September 30, 2015 |
| Appellate Division, Second Department |
[*1]
| In the Matter of David Lagani,Appellant, v Wenzhu Li, Respondent. |
Jennifer Jill O'Hara, White Plains, N.Y., for appellant.
Wenzhu Li, Mamaroneck, N.Y., respondent pro se.
Appeal from an order of the Family Court, Westchester County (Michelle I. Schauer,J.), dated June 20, 2014. The order denied the father's objections to a prior order of thatcourt (Rosa Cabanillas Thompson, S.M.), dated October 22, 2013, which, without ahearing, granted that branch of the mother's motion which was to dismiss his petition fora downward modification of his child support obligation.
Ordered that the order dated June 20, 2014, is affirmed, without costs ordisbursements.
The parties entered into a stipulation of settlement on July 3, 2012, which wasincorporated but not merged into their judgment of divorce on March 18, 2013. Thestipulation provided that the mother would have custody of their two children and it setthe amount of child support the father would pay. The parties agreed, among otherthings, to waive their rights under the provisions of the Child Support Standards Act(Domestic Relations Law § 240 [1-b]) that establish the presumptiveamount of child support. It was agreed that the father would pay child support in theamount of $3,000 a month, which was in excess of the amount that would have been setunder the Child Support Standards Act. The stipulation also stated that the parties wereadvised of Domestic Relations Law § 236 (B) (9) (b) and Family Court Act§ 451 and the possible application of those provisions to the child supportterms set forth in the stipulation.
The father subsequently petitioned for a downward modification of his child supportobligation, alleging that there had been a substantial change of circumstances since theexecution of the stipulation, in that the mother had obtained full-time employment andher gross income had increased by 15%. The mother moved, inter alia, to dismiss thepetition, arguing that her employment had recently been terminated, and she submitted aseverance agreement and general release to that effect. Without conducting a hearing, theSupport Magistrate granted that branch of the mother's motion which was to dismiss thepetition, and the father subsequently filed objections with the Family Court, which weredenied.
The parties' stipulation of settlement, which set forth the father's child support [*2]obligation, was executed after the effective date of the 2010amendments to Family Court Act § 451 (see L 2010, ch 182,§ 13). Thus, in order to establish his entitlement to a downwardmodification of his child support obligation, the father had the burden of establishing "asubstantial change in circumstances" (Matter of Pepe v Pepe, 128 AD3d 831, 834 [2015] [internalquotation marks omitted]; see Family Ct Act § 451 [3] [a]; cf. Matter of Suchan v Eagar,121 AD3d 910 [2014]). Furthermore, Family Court Act § 451 (3) (b)(ii) allows for modification, unless the parties have specifically opted out, when "therehas been a change in either party's gross income by fifteen percent or more since theorder was entered, last modified, or adjusted."
Contrary to the mother's contention, a review of the stipulation reveals that theparties only agreed to opt out of the presumptive child support amount determined underthe Child Support Standards Act and did not opt out of the modification provisions underFamily Court Act § 451 (3) (b) (ii). The stipulation expressly allows thefather to petition to modify his child support obligation under Family Court Act§ 451.
Contrary to the father's contention, a hearing was not required on the issue ofchanged circumstances. "Upon an application to set aside or vacate an order of support,no hearing shall be required unless such application shall be supported by affidavit andother evidentiary material sufficient to establish a prima facie case for the reliefrequested" (Family Ct Act § 451 [1]). A "hearing is necessary on the issueof changed circumstances where the parties' affidavits disclose the existence of genuinequestions of fact" (Conway vConway, 79 AD3d 965, 965 [2010] [internal quotation marks omitted]; seeSchnoor v Schnoor, 189 AD2d 809, 810 [1993]; see also Spiegel-Porco v Porco, 127 AD3d 849 [2015]; Reback v Reback, 93 AD3d652, 653 [2012]). Here, the mother attached documentation to her motion to dismissthe petition demonstrating that she had been terminated from her job and wasconsequently unemployed again, just as she was at the time of the parties' stipulation.The father did not dispute that the mother was unemployed. Since the undisputedevidence refuted the allegations in the petition and showed that there was no substantialchange in circumstances, there was no genuine issue of fact that would necessitate ahearing (see Spiegel-Porco vPorco, 127 AD3d 849 [2015]; Reback v Reback, 93 AD3d at 653; Conway v Conway, 79 AD3d965 [2010]). Under these circumstances, the "Family Court did not err in disposingof the matter without conducting a hearing and without enforcing petitioner's right tocompulsory financial disclosure by respondent" (Matter of Hernandez v Hernandez, 15 AD3d 946, 947[2005]; see Family Ct Act § 424-a).
Accordingly, the Family Court properly denied the father's objections to the SupportMagistrate's order granting, without a hearing, that branch of the mother's motion whichwas to dismiss the petition for a downward modification of his child support obligation.Dillon, J.P., Dickerson, Cohen and Duffy, JJ., concur.