Davis v. Davis

Decision Date18 October 1993
PartiesIn the Matter of Mary Ellen DAVIS, Respondent, v. Walter T. DAVIS, Jr., Appellant.
CourtNew York Supreme Court — Appellate Division

Ira Bierman, Great Neck, for appellant.

Before BALLETTA, J.P., and ROSENBLATT, MILLER and PIZZUTO, JJ.

MEMORANDUM BY THE COURT.

In a support proceeding pursuant to Family Court Act article 4, the father appeals from (1) an order of the Family Court, Suffolk County (McNulty, J.), entered October 15, 1990, which, after a hearing, denied his application for a downward modification of child support, and (2) an order of the same court (Auperin, J.), entered February 21, 1992, which, after a hearing, denied his renewed application for a downward modification of child support.

ORDERED that the orders are affirmed, without costs or disbursements.

The Family Court did not improvidently exercise its discretion in concluding that the appellant's earning potential was far greater than the amount he was reportedly earning as a seasonal landscaper (see, Marcello v. Marcello, 166 A.D.2d 558, 560 N.Y.S.2d 841; Alfano v. Alfano, 151 A.D.2d 530, 542 N.Y.S.2d 313; Tsoucalas v. Tsoucalas, 140 A.D.2d 333, 527 N.Y.S.2d 828; cf., Matter of Dupree v. Dupree, 62 N.Y.2d 1009, 479 N.Y.S.2d 491, 468 N.E.2d 673; see also, Family Ct.Act § 437). The appellant, a college graduate, had previously worked as a manager for the Grand Union Company and had also operated his own bread route. Yet, when he sold the bread route in January 1990 for $35,000, he chose to go to work in his brother-in-law's landscaping business. The appellant testified that he did not want to work in the food service industry, that he had chosen landscaping so he could be "outside", and that he had not looked for work other than landscaping because he was "happy with the job". Thus, there is no evidence in the record that the appellant made a good faith effort to obtain employment commensurate with his qualifications and experience (see, Matter of Jones v. Marolla, 105 A.D.2d 944, 946, 482 N.Y.S.2d 127). The evidence presented likewise supports the hearing examiner's finding that the appellant, who was employed in his brother-in-law's landscaping business, might have been earning significantly more than the $275 per week he claimed to be earning.

We further find that to the extent the hearing examiner may have demonstrated a certain antagonism toward the appellant, this was a justified reaction to the appellant's...

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22 cases
  • Szalapski v. Schwartz, 2003/8830.
    • United States
    • New York Supreme Court
    • March 29, 2011
    ...at lesser pay, the courts have refused to countenance his choice, even if he testifies that he is “happy with the job.” Davis v. Davis, 197 A.D.2d 622, 602 N.Y.S.2d 672 (2d Dep't 1993). Simple “conclusory terms” describing the applicant's search will not suffice, even though the applicant's......
  • Forrestel v. Jonkman
    • United States
    • New York Supreme Court — Appellate Division
    • March 24, 2017
    ...). We therefore conclude that the determination in appeal No. 1 was not affected by the comments at issue (see Matter of Davis v. Davis, 197 A.D.2d 622, 623, 602 N.Y.S.2d 672 ; see generally Matter of Kasprowicz v. Osgood, 101 A.D.3d 1760, 1762, 956 N.Y.S.2d 786, lv. denied 20 N.Y.3d 863, 2......
  • Fantau v. Fantau
    • United States
    • New York Supreme Court — Appellate Division
    • December 30, 2015
    ...education, ability, and experience (see Matter of Schlakman v. Schlakman, 66 A.D.3d at 787, 886 N.Y.S.2d 758 ; Matter of Davis v. Davis, 197 A.D.2d 622, 623, 602 N.Y.S.2d 672 ; cf. Ritchey v. Ritchey, 82 A.D.3d 948, 949, 920 N.Y.S.2d 105...
  • Scotti v. Scotti
    • United States
    • New York Supreme Court — Appellate Division
    • March 22, 2011
    ...230 A.D.2d 803, 804, 646 N.Y.S.2d 533; Matter of Meyer v. Meyer, 205 A.D.2d 784, 614 N.Y.S.2d 42; see also Matter of Davis v. Davis, 197 A.D.2d 622, 623, 602 N.Y.S.2d 672). Here, the unsubstantiated conclusory allegations of the father that he diligently sought employment commensurate with ......
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