Flanigan v. Smyth

• Decision Date: 01 December 2011
• Citation: 90 A.D.3d 1107,933 N.Y.S.2d 759,2011 N.Y. Slip Op. 08699
• Parties: In the Matter of Thomas E. FLANIGAN, Appellant, v. Bonnie Jean SMYTH, Respondent.
• Court: New York Supreme Court — Appellate Division

2011 N.Y. Slip Op. 08699

90 A.D.3d 1107

933 N.Y.S.2d 759

In the Matter of Thomas E. FLANIGAN, Appellant,

v.Bonnie Jean SMYTH, Respondent.

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

Dec. 1, 2011.

Mandel Clemente, P.C., North Greenbush (Linda A. Mandel Clemente of counsel), for appellant.

Before: MERCURE, J.P., SPAIN, LAHTINEN, MALONE JR. and EGAN JR., JJ.

MALONE JR., J.

Appeal from an order of the Family Court of Albany County (M. Walsh, J.), entered March 31, 2010, which dismissed petitioner's application, in a proceeding pursuant to Family Ct. Act article 4, for modification of a prior child support order.

The parties, who were never married, are the parents of one child (born in 2000) and, pursuant to an order entered in 2004, petitioner (hereinafter the father) was required to, among other things, pay child support in the amount of $1,750 per month. This amount reflected a downward deviation from the Child Support Standards Act ( see Family Ct. Act § 413), the application of which would have resulted in a presumptive support amount of $2,833 per month based upon the father's yearly income of $207,890. In 2007, the father unsuccessfully sought a downward modification of the support amount on the basis that, through no fault of his own, he was no longer employed. In dismissing the petition, by order entered in March 2008, Family Court determined that, although the father had lost his employment and made a reasonable search for new employment, he had nevertheless failed to demonstrate a change in circumstances warranting a reduction in his support obligation. Specifically, the court found that the father was possessed of sufficient means and ability to continue to provide the current rate of support, despite his unemployment, considering that he had more than $2 million in investment assets and $100,000 in a checking account. Thereafter, Family Court apparently adjusted the father's support obligation to $1,962 per month pursuant to a cost of living order.

The father commenced the instant proceeding in May 2009, again seeking a downward modification of his support obligation on the basis of his continued unemployment. Following a hearing, the Support Magistrate determined that the father had not established that there had been a change in circumstances since his previous unsuccessful attempt to modify the support order. The father filed objections to the findings of fact of the Support Magistrate, which were denied by Family Court. The father now appeals.

We affirm. The evidence presented by the father at the hearing does not demonstrate that there has been a substantial change in circumstances warranting a modification of his child support obligation ( see Matter of Bianchi v. Breakell, 48 A.D.3d 1000, 1002, 852 N.Y.S.2d 454 [2008]; Matter of Freedman v. Horike, 26 A.D.3d 680, 682, 809 N.Y.S.2d 649 [2006]; Matter of Carr v. Carr, 19 A.D.3d 839, 842, 797 N.Y.S.2d 594 [2005] ). At the ensuing fact-finding hearing, the father testified that for 35 years he had worked as a chief financial officer in public finance in various states, including in New York. During the five years preceding the hearing, he had applied for 40 to 50 positions and had received no offers of employment. He attributed this to his age (68 at the time of the hearing) and the fact that he believed he was overqualified for many of the positions for which he had applied. He testified that his only means of searching for jobs was to subscribe to trade magazines and by “networking.” The father admitted that he had restricted his search to positions within the public finance sector, in which he claimed to be an expert, and had not broadened his search to include related positions, such as consulting, writing or teaching, because he claimed—without providing any proof—that he was not qualified for such positions. On this record, and according deference to...