In the Matter of Debbie Levine–seidman v. Seidman

• Decision Date: 18 October 2011
• Citation: 931 N.Y.S.2d 125,2011 N.Y. Slip Op. 07428,88 A.D.3d 883
• Parties: In the Matter of Debbie LEVINE–SEIDMAN, respondent,v.Kurt SEIDMAN, appellant.
• Court: New York Supreme Court — Appellate Division

88 A.D.3d 883

931 N.Y.S.2d 125

2011 N.Y. Slip Op. 07428

In the Matter of Debbie LEVINE–SEIDMAN, respondent,

v.Kurt SEIDMAN, appellant.

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

Oct. 18, 2011.

Wand, Powers & Goody, LLP, Huntington, N.Y. (Jennifer H. Goody of counsel), for appellant.Christine Malafi, County Attorney, Central Islip, N.Y. (Jeffrey Dayton of counsel), for respondent.PETER B. SKELOS, J.P., CHERYL E. CHAMBERS, SANDRA L. SGROI, and ROBERT J. MILLER, JJ.

In a child support proceeding pursuant to Family Court Act article 4, the father appeals from an order of the Family Court, Suffolk County (Hoffman, J.), dated January 14, 2011, which denied his objections to an order of the same court (Livrieri, S.M.), dated September 28, 2010, which, after a hearing, inter alia, denied his petition for a downward modification of his child support obligation set forth in the judgment of divorce dated February 18, 2005, and adopted by the Family Court, Suffolk County by order dated October 25, 2005, and determined that he willfully failed to pay his child support obligation.

ORDERED that the order is affirmed, with costs.

Although the Family Court found that the father failed to show an “unanticipated” and “unforeseen” change in circumstances warranting a downward modification of his child support obligation, because the father's obligation was not contained in a stipulation of settlement that had been incorporated but not merged into a judgment of divorce, the standard that should have been applied is “a substantial change in circumstances” ( Matter of Mandelowitz v. Bodden, 68 A.D.3d 871, 874, 890 N.Y.S.2d 634 [internal quotation marks omitted]; see Matter of Marrale v. Marrale, 44 A.D.3d 773, 774, 843 N.Y.S.2d 407; cf. Matter of Boden v. Boden, 42 N.Y.2d 210, 397 N.Y.S.2d 701, 366 N.E.2d 791). “In determining whether there has been a substantial change in circumstances, the change is measured by comparing the payor's financial situation at the time of the application for a downward modification with that at the time of the order sought to be modified” ( Matter of Mandelowitz v. Bodden, 68 A.D.3d at 874, 890 N.Y.S.2d 634 [internal quotation marks omitted]; see Matter of Talty v. Talty, 42 A.D.3d 546, 547, 840 N.Y.S.2d 114). Moreover, “[a] parent's child support obligation is not necessarily determined by his or her current financial condition, but rather by his or her ability to provide support” ( Matter of Talty v. Talty, 42 A.D.3d at 547, 840 N.Y.S.2d 114 [internal quotation marks omitted] ).

Here, despite the father's testimony that the current economic downturn severely affected his earnings, and despite the fact that his income as a stock broker fluctuated yearly, depending on stock sales, he did not show a substantial change in average income since the entry of the divorce judgment which established his support obligation. Accordingly, on this record, the father failed to establish a substantial change in circumstances sufficient to entitle him to a downward modification of his support obligation ( see Matter of Marrale v. Marrale, 44 A.D.3d 773, 843 N.Y.S.2d 407; Matter of Talty v. Talty, 42 A.D.3d at 547, 840 N.Y.S.2d 114; see also Taylor v. Taylor, 83 A.D.3d 815, 920 N.Y.S.2d 419; Sofia v. Sofia, 162 A.D.2d 594, 556 N.Y.S.2d 778). Moreover, he failed to show that his ability to provide support had changed during that time ( see Basile v. Wiggs, 82 A.D.3d 921, 920 N.Y.S.2d 103; Matter of Talty v. Talty, 42 A.D.3d at 547, 840 N.Y.S.2d 114). Accordingly, the Family Court properly denied the father's objections to the Support Magistrate's...