L.M. v. B.M.

• Decision Date: 06 September 2017
• Docket Number: No. F–XXXXX–13/16G.,F–XXXXX–13/16G.
• Parties: In the Matter of a Proceeding for Support Under Article 4 of the Family Court Act, L.M., Petitioner, v. B.M., Respondent.
• Court: New York County Court

65 N.Y.S.3d 492 (Table)

In the Matter of a Proceeding for Support Under Article 4 of the Family Court Act, L.M., Petitioner,
v.
B.M., Respondent.

No. F–XXXXX–13/16G.

Family Court, Bronx County, New York.

Sept. 6, 2017.

Kevin Gomez, Esq., Middletown, NY, for Petitioner.

LISA S. HEADLEY, J.

On July 6, 2017, Petitioner-wife L.M. ("Petitioner"), filed an Objection to an Order of Dismissal entered by Support Magistrate Shira Atzmon dated June 19, 2017.¹ Respondent-husband, B.M. ("Respondent") did not file a rebuttal. This Court, after a review of the court file, including the audio recordings, written findings and evidence presented, finds the objection to be without merit and is therefore denied for the reasons stated herein.

Procedural History

The Petitioner is the legal wife of the Respondent, and they were married on May 26, 2000. On November 10, 2015, an order of support was entered by Support Magistrate Mary Neggie, which directed Respondent to pay Petitioner $100.00 weekly for spousal support. Thereafter, Petitioner filed a violation petition. As a result, on August 19, 2016, Support Magistrate Shira Atzmon entered a money judgment against Respondent for the arrears in the amount of $8,300.00, and directed Respondent to pay Petitioner $50.00 per week toward the arrears in addition to the spousal support obligation.

On September 7, 2016, Petitioner filed a petition to modify and increase the support order. In her petition, Petitioner states that there has been a substantial change in circumstances to seek a modification of the order. The basis of her modification is that she has experienced loss of income due to her declining health, she only receives social security benefits for income, she can no longer afford her utility expenses, and she is facing eviction proceedings as a result of her financial hardship. The Petitioner further states that Respondent failed to disclose his income "off the books," such as his personal injury award, and Respondent repeatedly fails to comply with the support order. The first appearance for the modification petition was scheduled on October 18, 2016, and issue was joined. This matter was subsequently adjourned several times, and the trial was held on June 19, 2017. Petitioner appeared with counsel, Kevin Gomez, Esq. Respondent did not have legal representation.²

On June 19, 2017, the court commenced the hearing for Petitioner's modification to the spousal support order. The court first inquired about the change in circumstances warranting a modification. Petitioner testified that she is seeking an increase because she is disabled. Petitioner further testified that she had an operation on her knee two or three years ago, and she works when she can. The court asked whether Petitioner's income had changed since the entering of the prior order and in response, Petitioner testified that her income has remained the same. Petitioner continues to work as a private cleaner and earns approximately $8,496.00 per year. Petitioner also testified that Respondent earns a lot of money and supports another woman that he lives with. To the contrary, Respondent testified that he works for a construction company as a contractor, and at that time he was not working full time because work was slow. Near the conclusion of the hearing, Petitioner changed her testimony and stated that she does not work, and requested an adjournment to submit documentation. The court declined Petitioner's request for an adjournment because in January 2017, this matter was marked final for the parties to submit their pay stubs, tax returns and financial affidavits, which they failed to provide.

Support Magistrate's Decision and Findings of Facts

On June 19, 2017, Support Magistrate Atzmon issued an Order of Dismissal of Petitioner's modification petition due to her failure to state a cause of action. The Support Magistrate determined that the Petitioner did not submit any evidence to support an increase in spousal support.³ The Support Magistrate reasoned that Petitioner "submitted testimony that she needed more support, but did not submit financial disclosure, and did not articulate the basis for her request for additional support, other than testifying that the husband ‘earns a lot of money in construction and that he is supporting another woman’."⁴ The Support...