Gavin v. Worner

• Decision Date: 26 December 2013
• Citation: 2013 N.Y. Slip Op. 08628,978 N.Y.S.2d 90,112 A.D.3d 928
• Parties: In the Matter of Susan GAVIN, appellant, v. Lawrence J. WORNER, respondent.
• Court: New York Supreme Court — Appellate Division

112 A.D.3d 928
978 N.Y.S.2d 90
2013 N.Y. Slip Op. 08628

In the Matter of Susan GAVIN, appellant,
v.
Lawrence J. WORNER, respondent.

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

Dec. 26, 2013.

Susan Gavin, Cornwall–On–Hudson, N.Y., appellant pro se.

WILLIAM F. MASTRO, J.P., PLUMMER E. LOTT, LEONARD B. AUSTIN, and SHERI S. ROMAN, JJ.

In a child support proceeding pursuant to Family Court Act article 4, the mother appeals from an order of the Family Court, Orange County (Kiedaisch, J.), dated January 7, 2013, which denied her objections to an order of the same court (Krahulik, S.M.), dated November 5, 2012, which, after a hearing, denied her petition for a downward modification of her child support obligation.

ORDERED that the order dated January 7, 2013, is affirmed, without costs or disbursements.

The Family Court may modify a prior order of child support upon a showing of a “substantial change in circumstance[s]” (

[978 N.Y.S.2d 91]

Domestic Relations Law § 236[B][9][b][1]; see Matter of Rodriguez v. Mendoza–Gonzalez, 96 A.D.3d 766, 766, 946 N.Y.S.2d 204; Matter of Sannuto v. Sannuto, 21 A.D.3d 901, 902–903, 800 N.Y.S.2d 601). The party seeking to modify a child support order has the burden of establishing that a modification is warranted ( see Matter of Mandelowitz v. Bodden, 68 A.D.3d 871, 874, 890 N.Y.S.2d 634; Matter of Marrale v. Marrale, 44 A.D.3d 773, 843 N.Y.S.2d 407). Although a petition for downward modification of child support may be granted based on a party's loss of employment due to an injury or illness, it may be denied when the moving party still has the ability to provide support through some other type of employment ( see Matter of Marrale v. Marrale, 44 A.D.3d at 775, 843 N.Y.S.2d 407; Matter of McCarthy v. McCarthy, 2 A.D.3d 735, 769 N.Y.S.2d 590; Matter of Madura v. Nass, 304 A.D.2d 579, 580, 756 N.Y.S.2d 890). Thus, a party seeking modification on the basis of loss of employment due to illness must show that he or she is incapable of working or has made a good faith effort to obtain other employment commensurate with his or her abilities or qualifications ( see Matter of Marrale v. Marrale, 44 A.D.3d at 775, 843 N.Y.S.2d 407; Matter of McCarthy v. McCarthy, 2 A.D.3d at 735, 769 N.Y.S.2d 590; Matter of Madura v. Nass, 304 A.D.2d at 580, 756 N.Y.S.2d 890). The credibility determinations of the hearing court are entitled to great weight on appeal and will not be disturbed if supported by the record ( see Matter...