Knipple v. Flanagan

• Decision Date: 14 October 1999
• Citation: 696 N.Y.S.2d 273
• Parties: In the Matter of Doug KNIPPLE, Appellant, v. Mildred FLANAGAN, Respondent.
• Court: New York Supreme Court — Appellate Division

Page 273

696 N.Y.S.2d 273

In the Matter of Doug KNIPPLE, Appellant, v. Mildred FLANAGAN, Respondent.

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

Oct. 14, 1999.

Douglas Knipple, Troy, appellant in person.

Keith C. St. John, Albany, for respondent.

Before: CARDONA, P.J., YESAWICH JR., SPAIN, CARPINELLO and GRAFFEO, JJ.

YESAWICH JR., J.

Appeal from an order of the Family Court of Albany County (Tobin, J.), entered September 29, 1998, which, inter alia, dismissed petitioner's application, in a proceeding pursuant to Family Court Act article 4, for a modification of a prior order of child support.

On March 10, 1998, the parties agreed to a modified visitation order which increased petitioner's visitation by allowing him to care for their son when he was not in school. Thereafter, petitioner, acting pro se, sought a downward modification of his support obligation, asserting that the increased visitation arrangement, among other things, constituted a change in circumstances. When the Hearing Examiner, on respondent's motion, dismissed the application without a hearing, concluding that petitioner had not established his right to a modification of his support obligation, and Family Court denied petitioner's objections to the Hearing Examiner's determination, this appeal followed.

We affirm. Modification of a child support award can be had if there has been a substantial change in circumstances (see, Domestic Relations Law § 236[B][b]; Matter of Hanehan v. Hanehan, 260A.D.2d 685, ----, 687 N.Y.S.2d 467, 468; see also, Matter of Scholet v. Newell, 229 A.D.2d 621, 622, 644 N.Y.S.2d 858). That petitioner's visitation has been increased--apparently the child now spends 40% of his time with petitioner and 46% with respondent--does not per se dictate a downward modification. Indeed, the financial obligation of the noncustodial parent must be computed irrespective of the amount of visitation, and then adjusted only if the amount is determined to be unjust or inappropriate due to one or more of the factors identified by Family Court Act § 413(1)(f) (see, Bast v. Rossoff, 91 N.Y.2d 723, 729, 675 N.Y.S.2d 19, 697 N.E.2d 1009; Matter of Fernandez v. Fernandez, 256 A.D.2d 901, 681 N.Y.S.2d 693). On this record no adjustment is called for. It appears that to take advantage of increased visitation with his son, petitioner gave up a part-time coaching position which paid him $2,250 per year. This loss of income did not work a substantial change in...