In re Giraldo

• Decision Date: 10 November 2021
• Docket Number: Docket No. F-2226-19/19B,2020-07205
• Parties: In the Matter of Michela Giraldo, respondent, v. Carlos M. Fernandez, appellant.
• Court: New York Supreme Court

2021 NY Slip Op 06170

In the Matter of Michela Giraldo, respondent,
v.
Carlos M. Fernandez, appellant.

No. 2020-07205

Docket No. F-2226-19/19B

Supreme Court of New York, Second Department

November 10, 2021

Submitted - October 8, 2021.

Sandra Stines, Westbury, NY, for appellant.

Charles Lawson, Brooklyn, NY, for respondent.

WILLIAM F. MASTRO, J.P. ROBERT J. MILLER FRANCESCA E. CONNOLLY LARA J. GENOVESI, JJ.

DECISION & ORDER

In a proceeding pursuant to Family Court Act article 4, the father appeals from an order of the Family Court, Nassau County (Ellen R. Greenberg, J.), dated August 26, 2020. The order denied the father's objections to an order of the same court (Sondra M. Toscano, S.M.) dated March 13, 2020, which, after a hearing, granted the mother's petition for an upward modification of his child support obligation as set forth in a stipulation entered in the Family Court, Bronx County, dated September 6, 2013, and increased his child support obligation from $300 per month to $522.55 biweekly.

ORDERED that the order dated August 26, 2020, is affirmed, with costs.

The parties have one child together. On September 6, 2013, a stipulation regarding child support was entered in the Family Court, Bronx County, directing the father to pay child support to the mother in the sum of $300 per month (hereinafter the stipulation). The stipulation also stated that the father would provide health insurance benefits for the child. On February 7, 2014, a judgment of divorce was entered in the Supreme Court, Bronx County, which incorporated, but did not merge, the stipulation. The judgment of divorce also provided that the father, as "the relative legally responsible to supply health insurance benefits," shall do so until the child reaches 21 years of age. The judgment of divorce further provided: "Each party has the right to seek a modification

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of the child support order upon a showing of (I) a substantial change in circumstances, or (II) that three years have passed since the order was entered, last modified or adjusted, or (III) there has been a change in either party's gross income by 15 percent or more since the order was entered, last modified or adjusted; however, if the parties have specifically opted out of subparagraphs (II) or (III) of this paragraph in a validly executed agreement or stipulation, then that basis to seek modification does not apply. The parties have not elected to opt[ ] out of subparagraphs (II) or (III)."

On May 23, 2019, the mother filed a petition in the Family Court, Nassau County, for an upward modification of the father's child support obligation pursuant to the terms of the judgment of divorce. She alleged a change in circumstances in that the father "makes more money, our son is older and requires more." She further alleged that "[t]he parties have not specifically agreed otherwise in a validly executed agreement or stipulation and three years have passed since the order was entered, last modified or adjusted." In support of her petition, the mother submitted the father's 2018 federal tax return, which demonstrated that the father's total income was $117, 316, a substantial increase from his $45, 000 annual income at the time the stipulation was entered.

On June 27, 2019, the Family Court, Nassau County, issued a temporary modification of an order of support, increasing the father's child support obligation from that set forth in the stipulation to $500 biweekly. After a hearing, in a fact-finding order dated March 13, 2020, the Support Magistrate found that the mother "has met her burden of proving a substantial change in circumstances" in that the father's income has increased by at least 15% since the entry of the judgment of divorce....