Berg v. O'Leary

• Decision Date: 17 May 1993
• Citation: 193 A.D.2d 732,597 N.Y.S.2d 733
• Parties: In the Matter of Sherry BERG, Respondent, v. Michael O'LEARY, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 733

597 N.Y.S.2d 733

193 A.D.2d 732

In the Matter of Sherry BERG, Respondent, v. Michael O'LEARY, Appellant.

Supreme Court, Appellate Division Second Department.

May 17, 1993.

Shapiro, Wolinsky & Parnell, Lake Ronkonkoma (Alan M. Wolinsky, of counsel), for appellant.

Sherry Berg, pro se.

Before SULLIVAN, J.P., and ROSENBLATT, MILLER, RITTER and SANTUCCI, JJ.

MEMORANDUM BY THE COURT.

In a proceeding for an upward modification of an award of child support, the father appeals from an order of the Family Court, Suffolk County (Auperin, J.), entered December 12, 1990, which denied his objections to an order of the same court (Silverman, H.E.), entered September 5, 1990, which, after a hearing, increased his weekly child support obligation from the sum of $25 to the sum of $150 per week for his daughter Shannon retroactive to August 18, 1989, and directed him to pay an additional $25 per week to satisfy arrears.

ORDERED that the order entered December 12, 1990, is affirmed, with costs.

The parties were married in December 1972 and their union produced two children, Shannon, born June 9, 1973, and Michael, born August 3, 1977. In September 1979 the parties entered into a separation agreement that provided, inter alia, that the mother would receive custody of the children, and that the father would pay weekly child support of $25 per child. In November 1979 a judgment of divorce was entered incorporating the provisions of the separation agreement which survived and did not merge in the judgment. In 1979 at the time of the divorce, the children were six and two years old, respectively. The father's gross earnings were approximately $16,800 per year. The mother was unemployed.

Alleging a change in circumstances and that the needs of both of the children were not met by the father's contribution to their support, the mother sought an upward modification of the child support set 10 years earlier. Subsequent to the filing of the mother's petition, the parties' son Michael moved to his father's residence.

In support of her petition which then sought increased child support for the parties' daughter Shannon, the mother testified to increased expenses due to Shannon's growing and different needs, the increased cost of living, as well as substantial improvements in the financial circumstances of the father, who was then earning in excess of $70,000 per year, factors justifying a finding of a change in circumstances as set forth in Matter of Brescia v. Fitts, 56 N.Y.2d 132, 141, 451 N.Y.S.2d 68, 436 N.E.2d 518) and Matter of Michaels v. Michaels, 56 N.Y.2d 924, 453 N.Y.S.2d 605, 439 N.E.2d 321). Based upon the testimony and the evidence, the Hearing Examiner determined that a change in circumstances had occurred warranting both an increase in the father's support obligation for their daughter, and an obligation on the part of the mother (now a noncustodial parent to the parties' son) to contribute to his support. Having found the requisite change in circumstances, the Hearing Examiner appropriately applied the Child Support Guidelines formula to both parties' support obligations (see, Family Ct. Act § 413; see, Matter of Miller v. Davis, 176 A.D.2d 945, 575 N.Y.S.2d 681; Matter of Fetherston v. Fetherston, 172 A.D.2d 831, 569 N.Y.S.2d 752). Although the mother was unemployed at the time of the proceeding, the hearing examiner imputed income to her in the sum of $16,000, based upon her prior employment experience (see, Carr v. Carr, 171 A.D.2d 776, 567 N.Y.S.2d 495). The net effect of the application of the formula to the income of both parties resulted in an increased obligation on the part of the father for Shannon's support requiring him to pay $150 per week.

We see no reason to disturb the findings of fact made by the Hearing Examiner, who was in the best position to hear and evaluate the evidence as well as the credibility of the witnesses (see, Matter of Brescia v. Fitts, supra; Gilzinger v. Stern, 186 A.D.2d 652, 588 N.Y.S.2d 629; Creem v. Creem, 121 A.D.2d 676, 677, 504 N.Y.S.2d 444). The mother has met her burden of establishing the increased expenses and needs of the child and the other spouse's ability to pay, thereby justifying modification of the original support obligation (see, Matter of Ragazzo v. Murray, 175 A.D.2d 247, 572 N.Y.S.2d 713; Devenuti v. Devenuti, 170 A.D.2d 573, 566 N.Y.S.2d 349). Moreover, we find that the Child Support Guidelines, and the income computations made pursuant thereto, were correctly applied.

The dissenters correctly note that the marital residence was transferred to the mother at the time of the parties' separation. However, they failed to note that the father's equity was then only $9,000, and the house was in foreclosure. The conveyance of this property therefore fails to justify an inference that the mother accepted a low child support obligation intended to last through the children's majority regardless of any change in circumstances. More likely, the rationale of the initial child support obligation is the fact that the father was then earning only $16,800 per year and $25 per week support for each of the parties' two children then constituted about 16% of his gross income and probably appeared reasonable to the parties. (The $25 per week obligation for the parties' daughter Shannon at the time of these proceedings constitutes less than 2% of his annual income.)

Our dissenting colleagues would reverse the order appealed from due to the mother's failure to specify those precise expenses incurred by the parties' 17-year-old daughter which, under the facts of this case, were not met by the father's $25 per week support contribution and the mother's nonexistent income. Although the dissent attempts to trivialize the mother's case by referring to her "lament" that she would like to provide her daughter with more than three sweaters per year, this ignores the obvious fact that this growing child's needs simply cannot be met on a weekly contribution of $25. We are not required to don blinders to the uncontroverted circumstances underlying this case nor must a custodial parent itemize every single expense that cannot be met to prove her entitlement to an upward modification where the amount of support provided by the noncustodial parent is as paltry as that in the instant case and where that parent's fourfold increased income enables him or her to pay more adequate support. Although the Hearing Examiner may have overstated the quantum of proof the mother presented in establishing the child's increased needs, the disposition herein is adequately supported by the record and the law. We are not precluded from drawing the sole reasonable inference from the record, to wit, that Shannon's needs were not being met with the de minimis support contribution from her father.

The result urged by the dissenters would disregard the direction of the Court of Appeals in Matter of Brescia v. Fitts (supra) and Matter of Michaels v. Michaels (supra), to consider the best interest of children, and the circumstances of the case, including:

"[T]he increased needs of the children due to special circumstances or to the additional activities of growing children, the increased cost of living insofar as it results in greater expenses for the children [and] a substantial improvement in the financial condition of a parent" (Matter of Brescia v. Fitts, supra, 56 N.Y.2d at 141, 451 N.Y.S.2d 68, 436 N.E.2d 518).

Moreover, reversal in this case would disregard entirely the clearly expressed legislative intent to address inadequacies and inconsistencies of both initial and modified child support awards expressed in the Family Support Act of 1988, and the Child Support Standards Act of 1989 (see, Pub.L. 100-485, 102 Stat. 2377; 42 U.S.C. § 602; Domestic Relations Law § 240[1-b]; Family Ct. Act § 413[1][c].

ROSENBLATT, MILLER and SANTUCCI, JJ., concur.

SULLIVAN, J.P., dissents and votes to reverse the order appealed from, on the law, and to dismiss the mother's petition for an upward modification of child support, with the following memorandum, in which RITTER, J., concurs.

Since our reading of the record on appeal does not support the bald conclusion of the majority that the mother has met her burden of proof, we dissent.

There is no dispute that the party moving to modify the child support obligations set forth in a separation agreement bears both the burden of coming forward and the burden of persuasion on the issue. The Court of Appeals has set forth two standards of proof in...