Cali v. Cali

• Decision Date: 07 November 2018
• Docket Number: 2018–02615,Docket No. F–6935–17/17A
• Citation: 166 A.D.3d 610,87 N.Y.S.3d 225
• Parties: In the Matter of Amanda CALI, Appellant, v. Vincent CALI II, Respondent.
• Court: New York Supreme Court — Appellate Division

166 A.D.3d 610

87 N.Y.S.3d 225

In the Matter of Amanda CALI, Appellant,

v.Vincent CALI II, Respondent.

2018–02615

Docket No. F–6935–17/17A

Supreme Court, Appellate Division, Second Department, New York.

Submitted—September 21, 2018

November 7, 2018

The Sallah Law Firm, P.C., Holtsville, N.Y. (Dean J. Sallah of counsel), for appellant.

WILLIAM F. MASTRO, J.P., JEFFREY A. COHEN, JOSEPH J. MALTESE, LINDA CHRISTOPHER, JJ.

DECISION & ORDER

In a proceeding pursuant to Family Court Act article 4, the mother appeals from an order of the Family Court, Suffolk County (Kathy G. Bergmann, J.), dated February 7, 2018. The order denied the mother's objections to an order of the same court (Melissa J. Willmott, S.M.), dated November 27, 2017, which, after a hearing, denied her petition, inter alia, for an upward modification of the father's child support obligation.

ORDERED that the order dated February 7, 2018, is modified, on the law and the facts, by deleting the provision thereof denying the mother's objection to so much of the order dated November 27, 2017, as denied that branch of her petition which was for an upward modification of the father's child support obligation, and substituting therefor a provision granting the mother's objection; as so modified, the order dated February 7, 2018, is affirmed, without costs or disbursements, and the matter is remitted to the Family Court, Suffolk County, for a new determination of the father's child support obligation in accordance herewith.

The mother sought, inter alia, an upward modification of the father's child support obligation in light of an alleged substantial increase in his salary and his failure to care for the children in accordance with the terms of the parties' stipulation of settlement, which was incorporated but not merged into the parties' judgment of divorce. Following a hearing, during which the Support Magistrate declined to accept the mother's proffer of evidence on the issue of whether the stipulation should also be modified so as to allow her to claim both of the parties' children as dependents on her tax returns, the Support Magistrate concluded, inter alia, that the mother had failed to submit the requisite financial documentation to establish a prima facie case, and denied her petition. The mother filed objections to the order. The Family Court denied the objections, and the mother appeals.

" Section 451 of the Family Court Act ‘allows a court to modify an order of child support, without requiring a party to allege or demonstrate a substantial change in circumstances, where either party's gross income has changed by 15% or more since the order was entered or modified’ " ( Matter of Thomas v. Fosmire, 138 A.D.3d 1007, 1007, 30 N.Y.S.3d 268, quoting Matter of Zibell v. Zibell, 112 A.D.3d 1101, 1102, 976 N.Y.S.2d 625 ). Moreover, section 424–a of the Family Court Act mandates the compulsory disclosure by both parties to a support proceeding of "their respective financial states," through the provision of tax returns, pay stubs, and sworn statements of net worth. As the mother correctly contends, the Support Magistrate informed her, prior to the hearing, that the court did, in fact, have a copy of her pay stubs and most recent federal tax return. To the extent that the mother did not provide updated pay stubs on the date of the hearing, and that the tax return submitted was not a signed copy, these issues were not brought to the mother's attention prior to the issuance of the Support Magistrate's order. Based on this record, along with the hearing evidence that the father's salary did, in fact, increase by more than 15% since the parties entered into their stipulation of settlement (see Family Ct Act § 451 ; Matter of Thomas v. Fosmire, 138 A.D.3d at 1007, 30 N.Y.S.3d...