Fantau v. Fantau

• Decision Date: 30 December 2015
• Parties: In the Matter of Michael A. FANTAU, appellant, v. Denise M. FANTAU, respondent.
• Court: New York Supreme Court — Appellate Division

134 A.D.3d 1109

21 N.Y.S.3d 725

In the Matter of Michael A. FANTAU, appellant,

v.Denise M. FANTAU, respondent.

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

Dec. 30, 2015.

Michael A. Fantau, Wayne, N.J., appellant pro se.

REINALDO E. RIVERA, J.P., L. PRISCILLA HALL, SHERI S. ROMAN, and SANDRA L. SGROI, JJ.

Appeal from an order of the Family Court, Suffolk County (Bernard Cheng, J.), dated February 4, 2015. The order denied the father's objections to an order of that court (Aletha V. Fields, S.M.), dated December 22, 2014, which, after a hearing, dismissed his petition for a downward modification of his child support obligation.

ORDERED that the order dated February 4, 2015, is affirmed, without costs or disbursements.

In this child support proceeding pursuant to Family Court Act article 4, the father was directed to pay child support in an order dated May 25, 2012. In August 2014, the father sought downward modification of his child support obligation. A support magistrate dismissed the father's petition in an order dated December 22, 2014. In an order dated February 4, 2015, the Family Court denied the father's objections to the support magistrate's order. The father appeals.

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 ). "A reduction in income shall not be considered as a ground for modification unless it was involuntary and the party has made diligent attempts to secure employment commensurate with his or her education, ability, and experience" (Raab v. Raab, 129 A.D.3d 1050, 1050, 11 N.Y.S.3d 678 [internal quotation marks omitted] ). "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 Baumgardner v. Baumgardner, 126 A.D.3d at 897, 6 N.Y.S.3d 90 ; Ashmore v. Ashmore, 114 A.D.3d 712, 713, 981 N.Y.S.2d 427 ; Matter of Solis v. Marmolejos, 50 A.D.3d 691, 692, 855 N.Y.S.2d 584 ).

Here, the Family Court properly denied the father's objections to the order dated December 22, 2014. The record supported the Family Court's determination that the father failed to establish that he used his best efforts to obtain employment which was commensurate with his qualifications and experience, or that his current income was commensurate with his earning capacity so as to...