Cato v. Cato

• Decision Date: 09 December 2015
• Citation: 134 A.D.3d 821,22 N.Y.S.3d 459
• Parties: In the Matter of Tyrone CATO, appellant, v. Pamela Cato, respondent. (Appeal No. 1) In the Matter of Tyrone Cato, appellant, v. Pamela Cato, respondent; New York City Human Resources Administration Child Support Collection Unit, intervenor-respondent. (Appeal No. 2).
• Court: New York Supreme Court — Appellate Division

134 A.D.3d 821

22 N.Y.S.3d 459

In the Matter of Tyrone CATO, appellant,

v.Pamela Cato, respondent. (Appeal No. 1)

In the Matter of Tyrone Cato, appellant,

v.Pamela Cato, respondent;

New York City Human Resources Administration Child Support Collection Unit, intervenor-respondent. (Appeal No. 2).

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

Dec. 9, 2015.

Tyrone Cato, Brooklyn, N.Y., appellant pro se.

Zachary W. Carter, Corporation Counsel, New York, N.Y. (Scott Shorr and Susan P. Greenberg of counsel; Justin Langdon on the brief), for intervenor-respondent in Appeal No. 2.

MARK C. DILLON, J.P., LEONARD B. AUSTIN, SHERI S. ROMAN, and BETSY BARROS, JJ.

Appeals from two orders of the Family Court, Kings County (Maria Arias, J.), dated October 22, 2014, and February 25, 2015, respectively. The order dated October 22, 2014, denied the father's objections to an order of that court (Elizabeth Shamahs, S.M.), dated July 16, 2014, which denied his petition for a downward modification of his child support obligation. The order dated February 25, 2015, denied the father's objections to a determination of the New York City Human Resources Administration Child Support Collection Unit dated December 2, 2014, which denied his challenge to a notice to suspend his driver license.

ORDERED that the orders are affirmed, with one bill of costs to the intervenor-respondent.

5"A ‘party seeking modification of an order of child support has the burden of establishing the existence of a substantial change in circumstances warranting the modification’ " (Matter of Rolko v. Intini, 128 A.D.3d 705, 706, 9 N.Y.S.3d 101, quoting Matter of Baumgardner v. Baumgardner, 126 A.D.3d 895, 896–897, 6 N.Y.S.3d 90 ; see Matter of Lagani v. Li, 131 A.D.3d 1246, 16 N.Y.S.3d 863 ; Matter of Pepe v. Pepe, 128 A.D.3d 831, 834, 9 N.Y.S.3d 161 ; Family Ct. Act § 451 ). "A parent's loss of employment may constitute a substantial change in circumstances" (Matter of Rubenstein v. Rubenstein, 114 A.D.3d 798, 798, 980 N.Y.S.2d 531 ; see Matter of Suyunov v. Tarashchansky, 98 A.D.3d 744, 745, 950 N.Y.S.2d 399 ; Matter of Ceballos v. Castillo, 85 A.D.3d 1161, 1163, 926 N.Y.S.2d 142 ). However, where loss of employment is the basis of the petition for downward modification, the parent "must submit competent proof that ‘the termination occurred through no fault of the parent and the parent has diligently sought re-employment commensurate with his or her earning capacity’ " (Matter of Rolko v. Intini, 128 A.D.3d at 706, 9 N.Y.S.3d 101, quoting Matter of Riendeau v. Riendeau, 95 A.D.3d 891, 892, 943 N.Y.S.2d 215 ; see Matter of Rubenstein v. Rubenstein,

114 A.D.3d at 798, 980 N.Y.S.2d 531 ; Ashmore v. Ashmore, 114 A.D.3d 712, 713, 981 N.Y.S.2d 427 ). "The proper amount of support to be paid ... is determined not by the parent's current economic situation, but by the parent's assets and earning capacity" (Matter of Muselevichus v. Muselevichus, 40 A.D.3d 997, 998–999, 836 N.Y.S.2d 661 ; see Matter of Rolko v. Intini, 128 A.D.3d at 706, 9 N.Y.S.3d 101 ; Matter of Baumgardner v. Baumgardner, 126 A.D.3d at 896–897, 6 N.Y.S.3d 90 ; Ashmore v. Ashmore, 114 A.D.3d at 713, 981 N.Y.S.2d 427 ). On appeal, the credibility determinations of the Support Magistrate, who was in the best position to evaluate the credibility of the witnesses, are entitled to deference (see Matter of Rolko v. Intini, 128 A.D.3d at 706, 9 N.Y.S.3d 101 ; Matter of Rubenstein v. Rubenstein, 114 A.D.3d at 798, 980 N.Y.S.2d 531 ; Matter of Suyunov v. Tarashchansky, 98 A.D.3d at 745, 950 N.Y.S.2d 399 ).

Here, although the father claimed that he had been forced to retire from his job because his deteriorating eyesight prevented him from driving safely, which was one of his job duties, he failed to proffer any competent medical testimony supporting this claim (see Matter of Reinhardt v. Hardison, 122 A.D.3d 1448, 997 N.Y.S.2d 564 ). In addition, the father failed to demonstrate that he was " ‘incapable of working or [had] made a good faith effort to obtain other employment commensurate with his ... abilities or qualifications' " (Matter of Pepe v. Pepe, 128 A.D.3d at 834, 9 N.Y.S.3d 161, quoting Matter of Gavin v. Worner, 112 A.D.3d 928, 929, 978 N.Y.S.2d 90 ). Similarly, the father did not present any evidence that his retirement was in fact involuntary (see Matter of Watrous v. Watrous, 295 A.D.2d 664, 665–666, 742 N.Y.S.2d 729 ; Matter of McKeown v. Woessner, 249 A.D.2d 396, 397–398, 671 N.Y.S.2d 134 ). Accordingly, the Family Court properly denied ...