Jean-Baptiste v. Jean-Baptiste

• Decision Date: 20 July 2022
• Docket Number: 2021–07992,Docket No. F–3518–17/21D
• Parties: In the Matter of Gamaliel JEAN–BAPTISTE, appellant, v. Nageland Marie JEAN–BAPTISTE, respondent.
• Court: New York Supreme Court — Appellate Division

170 N.Y.S.3d 474 (Mem)

In the Matter of Gamaliel JEAN–BAPTISTE, appellant,

v.Nageland Marie JEAN–BAPTISTE, respondent.

2021–07992

Docket No. F–3518–17/21D

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

Submitted—May 17, 2022

July 20, 2022

John A. Reno, Deer Park, NY, for appellant.

Suzanne Myron, Syosset, NY, for respondent.

FRANCESCA E. CONNOLLY, J.P., JOSEPH J. MALTESE, PAUL WOOTEN, 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 (Robin M. Kent, J.), dated September 27, 2021. The order denied the father's objections to an order of the same court (Lisa M. Williams, S.M.) dated August 17, 2021, which, without a hearing, dismissed the father's petition for a downward modification of his child support obligation.

ORDERED that the order dated September 27, 2021, is affirmed, with costs.

Gamaliel Jean–Baptiste (hereinafter the father) and Nagelande Marie Jean–Baptiste (hereinafter the mother) have three children together. The mother and the father divorced in 2017. Under the judgment of divorce, the father was to pay child support in the sum of $973 per month. By petition dated December 28, 2020, the father sought a downward modification of his child support obligation on the basis that there had been a substantial change in circumstances, namely, that he had lost work as a result of a lack of business. The mother moved to dismiss the father's petition. The Support Magistrate, in effect, granted the mother's motion and dismissed the petition without a hearing. The father filed objections to the Support Magistrate's order. In an order dated September 27, 2021, the Family Court denied the father's objections. The father appeals.

"On a motion to dismiss a pleading pursuant to CPLR 3211(a)(7), all of the allegations in the petition are deemed true and the petitioner is afforded the benefit of every favorable inference" ( Matter of Gerety v. Gerety, 203 A.D.3d 827, 829, 164 N.Y.S.3d 641 [internal quotation marks omitted]). "When evidentiary material outside the pleading's four corners is considered, and the motion is not converted into one for summary judgment, the question becomes whether the pleader has a cause of action, not whether the pleader has stated one and, unless it has been shown that a material fact as claimed by the pleader is not a fact at all, and unless it can be said that no significant dispute exists regarding it, dismissal [shall] not eventuate" ( id. at 829, 164 N.Y.S.3d 641 [internal quotation marks omitted]). " ‘Upon an application to set aside or vacate an order of support, no hearing shall be required unless such application shall be supported by affidavit and other evidentiary material sufficient to establish a prima facie case for the relief requested’ " ( Matter of Camarda v. Charlot, 182 A.D.3d 532, 533–534, 122 N.Y.S.3d 647, quoting Family Ct Act § 451[1] ).

"The party seeking modification of an order of child support has the burden of establishing the existence of a substantial change in circumstances warranting the modification" ( Matter of Gerety v. Gerety, 203 A.D.3d at 828, 164 N.Y.S.3d 641 [internal quotation marks omitted]). "A parent's loss of employment may constitute a substantial change in circumstances" ( Matter of Evans v. White, 173 A.D.3d 864, 865, 100 N.Y.S.3d 547 [internal quotation marks omitted]). "However, the proper amount of support is determined not by the parent's current economic situation, but by the parent's assets and earning capacity" ( id. at 865, 100 N.Y.S.3d 547 [internal quotation marks omitted]). "Thus, [a] party seeking a downward modification of his or her child support obligation based upon a loss of employment has the burden of demonstrating that his or her employment was terminated through no fault of his or her own, and that he or she made diligent attempts to secure employment commensurate with his or her education, ability, and experience" ( id. [internal quotation marks omitted]; see Schwaber v. Schwaber, 91 A.D.3d 939, 939, 937 N.Y.S.2d 625 ; Conway...