In the Matter of Freedman v. Horike

• Decision Date: 23 February 2006
• Docket Number: 96980.
• Citation: 26 A.D.3d 680,809 N.Y.S.2d 649,2006 NY Slip Op 01328
• Parties: In the Matter of MARK FREEDMAN, Appellant, v. REGAN HORIKE, Respondent. (Proceeding No. 1.) In the Matter of ROBIN M. BABJECK, as Designee for the Columbia County Department of Social Services, on Behalf of REGAN HORIKE, Respondent, v. MARK FREEDMAN, Appellant. (Proceeding No. 2.)
• Court: New York Supreme Court — Appellate Division

26 A.D.3d 680

809 N.Y.S.2d 649

2006 NY Slip Op 01328

In the Matter of MARK FREEDMAN, Appellant, v. REGAN HORIKE, Respondent. (Proceeding No. 1.)

In the Matter of ROBIN M. BABJECK, as Designee for the Columbia County Department of Social Services, on Behalf of REGAN HORIKE, Respondent, v. MARK FREEDMAN, Appellant. (Proceeding No. 2.)

96980.

Appellate Division of the Supreme Court of the State of New York, Third Department.

February 23, 2006.

Appeal from an order of the Family Court of Columbia County (Czajka, J.), entered September 15, 2004, which (1) dismissed petitioner's application, in proceeding No. 1 pursuant to Family Ct Act article 4, for modification of prior support orders, and (2) granted petitioner's application, in proceeding No. 2 pursuant to Family Ct Act article 6, to hold respondent in willful violation of prior support orders.

MERCURE, J.P.

The parties in proceeding No. 1 are the parents of two children (born in 1989 and 1998). They were divorced in 2002 pursuant to a Supreme Court judgment that incorporated the provisions of two Family Court orders and the terms of the parties' stipulation. As relevant here, the father agreed to pay the mother $100 per week in maintenance for three years and $171 per week in child support. After the father lost his job in January 2003, the parties stipulated to a reduction of the father's child support obligation to $80 per week, with the balance to accrue until he regained employment or until August 1, 2003, whichever came first.

In November 2003, after his unemployment benefits ran out, the father commenced proceeding No. 1 seeking a downward modification of his support obligation. Petitioner in proceeding No. 2, Robin Babjeck, a support investigator for the Columbia County Department of Social Services, filed a violation petition against the father on behalf of the mother, seeking approximately $2,800 in support arrears. Following a hearing, a support magistrate dismissed the father's petition, found him to be in willful violation of the support orders, directed that judgment be entered against him in the amount of $926 and awarded counsel fees to the mother's attorney. Thereafter, Family Court denied the father's objections to the support magistrate's determination and the father now appeals from Family Court's order.^*

Initially, we reject the father's argument that Family Court erred in finding that he willfully violated the prior support orders. The father concedes that he did not meet his support obligations and that, therefore, he bore the burden of demonstrating "his inability to make the required payments" by "competent, credible evidence" (Matter of Powers v. Powers, 86 NY2d 63, 70 [1995]; see Matter of Heyn v. Burr, 19 AD3d 896, 898 [2005]). He asserts that he met this burden through evidence that he was unemployed and unable to obtain suitable employment in his field despite diligent efforts. The record reveals, however, that the father's unemployment was self-imposed, inasmuch as he was terminated from his position as a financial advisor due to his violation of rules prohibiting financial service consultants from owning and trading in any outside brokerage accounts. Thereafter, he declined additional opportunities for employment in order to retain his unemployment benefits, which he believed were more lucrative than the potential job offers. In addition, the father had several sources of collateral income, such as stock sales, that provided sufficient funds to meet his support obligations. Under these circumstances and affording deference to Family Court's credibility assessments, we cannot say that Family Court erred in determining that the father willfully violated the support orders (see Matter of...