Ealy v. Levy-Hill
| Decision Date | 29 June 2016 |
| Citation | 140 A.D.3d 1164,33 N.Y.S.3d 754 (Mem),2016 N.Y. Slip Op. 05149 |
| Parties | In the Matter of Joel EALY, respondent, v. Erin LEVY–HILL, appellant. |
| Court | New York Supreme Court — Appellate Division |
Michele Lee Neusch, Walden, NY, for appellant.
Joel Ealy, Chicora, Pennsylvania, respondent pro se.
Appeal from an order of the Family Court, Orange County (Debra J. Kiedaisch, J.), dated February 24, 2015. The order, insofar as appealed from, denied the mother's objections to an order of that court (Gladys E. Braxton, S.M.) dated December 24, 2014, which, after a hearing, granted the father's petition for a downward modification of his child support obligation.
ORDERED that the order dated February 24, 2015, is reversed insofar as appealed from, on the law, with costs, the mother's objections are granted, the order dated December 24, 2014, is vacated, and the father's petition for a downward modification of his child support obligation is denied.
The Family Court should have granted the mother's objections to the Support Magistrate's order granting the father's petition for a downward modification of his child support obligation. 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 Baumgardner v. Baumgardner, 126 A.D.3d 895, 896–897, 6 N.Y.S.3d 90
; see Matter of
Rubenstein v. Rubenstein, 114 A.D.3d 798, 798, 980 N.Y.S.2d 531 ; Matter of
Suyunov v. Tarashchansky, 98 A.D.3d 744, 745, 950 N.Y.S.2d 399 ). Here, although the loss of employment can constitute such a change in circumstances, the father failed to establish that the termination of his employment did not involve his own fault, and he did not present competent proof at the hearing that, after he lost his job, he made a diligent effort to obtain new employment commensurate with his qualifications and experience (see Matter of
Rubenstein v. Rubenstein, 114 A.D.3d at 798–799, 980 N.Y.S.2d 531 ; Ashmore v. Ashmore, 114 A.D.3d 712, 713, 981 N.Y.S.2d 427 ; Matter of
Nenninger v. Tonnessen, 113 A.D.3d 619, 977 N.Y.S.2d 897 ; Matter of
Gedacht v. Agulnek, 67 A.D.3d 1013, 890 N.Y.S.2d 76 ; Matter of
Awwad v. Awwad, 62 A.D.3d 695, 880 N.Y.S.2d 292 ). We note that the father failed to submit evidence such as résumés sent to potential employers, or proof that he had been on any interviews in search of employment (see Matter of
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Brady v. White
...not show that he had diligently sought re-employment commensurate with his qualifications and experience (see Matter of Ealy v. Levy–Hill, 140 A.D.3d 1164, 1165, 33 N.Y.S.3d 754; Matter of Rubenstein v. Rubenstein, 114 A.D.3d 798, 799, 980 N.Y.S.2d 531). Accordingly, the father failed to sa......
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...that the father diligently sought to obtain employment commensurate with his earning capacity (see Matter of Ealy v. Levy–Hill, 140 A.D.3d 1164, 1165, 33 N.Y.S.3d 754 ; Matter of Fantau v. Fantau, 134 A.D.3d 1109, 1110, 21 N.Y.S.3d 725 ; cf. Matter of Ceballos v. Castillo, 85 A.D.3d 1161, 1......
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Zaveckas v. Senat
...support order bears the burden of establishing a change in circumstances warranting the modification (see Matter of Ealy v. Levy–Hill, 140 A.D.3d 1164, 1165, 33 N.Y.S.3d 754 ; Matter of Nenninger v. Tonnessen, 113 A.D.3d 619, 977 N.Y.S.2d 897 ). Here, the record supports the Support Magistr......