Leonardo v. Leonardo

Citation2012 N.Y. Slip Op. 03026,942 N.Y.S.2d 728,94 A.D.3d 1452
PartiesIn the Matter of John LEONARDO, Petitioner–Appellant, v. Elaina M. LEONARDO, Respondent–Respondent. (Appeal No. 1.)
Decision Date20 April 2012
CourtNew York Supreme Court Appellate Division

2012 N.Y. Slip Op. 03026
94 A.D.3d 1452
942 N.Y.S.2d 728

In the Matter of John LEONARDO, Petitioner–Appellant,
v.
Elaina M. LEONARDO, Respondent–Respondent.
(Appeal No. 1.)

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

April 20, 2012.


[942 N.Y.S.2d 729]

D.J. & J.A. Cirando, Esqs., Syracuse (Elizabeth Dev. Moeller of Counsel), for Petitioner–Appellant.

Frank H. Hiscock Legal Aid Society, Syracuse (Kristen McDermott of Counsel), for Respondent–Respondent.

PRESENT: CENTRA, J.P., PERADOTTO, SCONIERS, AND MARTOCHE, JJ.

MEMORANDUM:

[94 A.D.3d 1453] Petitioner father commenced this proceeding seeking a downward modification of his child support obligation based on a change in employment. In the amended petition, the father sought to vacate the prior order of support and to require respondent mother to pay him support because he had physical custody of the children for more time than the mother. Following a hearing, the Support Magistrate granted the father's amended petition in part by reducing his support obligation. Family Court denied the objections of the father to the Support Magistrate's order and modified that order by denying the amended petition in its entirety and increasing the father's support obligation.

The father contends that the Support Magistrate did not have jurisdiction to hear and determine this proceeding because the father alleged that he was now the custodial parent ( see generally Family Ct. Act § 439[a] ). We reject that contention. The Support Magistrate properly considered the current custodial arrangement in determining which parent was the custodial parent for purposes of child support ( see Matter of Hunt v. Bartley, 85 A.D.3d 1275, 1276–1277, 926 N.Y.S.2d 667; Matter of Moore v. Shapiro, 30 A.D.3d 1054, 1055, 815 N.Y.S.2d 855). Contrary to the father's further contention, the court properly imputed income to him and denied his amended petition in its entirety. With respect to the father's allegation in the amended petition that he was entitled to a vacatur of the order of support or a downward modification of his support obligation on the ground that he was spending more time with the children, the Support Magistrate and the court properly determined that he remained the noncustodial parent for child support purposes ( see generally Bast v. Rossoff, 91 N.Y.2d 723, 728–732, 675 N.Y.S.2d 19, 697 N.E.2d 1009). With respect to the father's further allegation in the amended petition that he was entitled to a...

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6 cases
  • Kasprowicz v. Osgood
    • United States
    • New York Supreme Court Appellate Division
    • December 28, 2012
    ...of “establishing that he diligently sought re-employment commensurate with his former employment” ( Matter of Leonardo v. Leonardo, 94 A.D.3d 1452, 1453, 942 N.Y.S.2d 728,lv. denied19 N.Y.3d 807, 2012 WL 2401528;cf. Matter of Glinski v. Glinski, 199 A.D.2d 994, 994–995, 606 N.Y.S.2d 468). F......
  • Brinson v. Brinson, 919
    • United States
    • New York Supreme Court Appellate Division
    • December 20, 2019
    ...that she was denied her right to counsel, petitioner did not have a right to counsel in this matter (see Matter of Leonardo v. Leonardo , 94 A.D.3d 1452, 1454, 942 N.Y.S.2d 728 [4th Dept. 2012], lv denied 19 N.Y.3d 807, 2012 WL 2401528 [2012] ; Matter of Commissioner of Social Servs. of Cit......
  • People v. Morris
    • United States
    • New York Supreme Court Appellate Division
    • April 20, 2012
    ...14 N.Y.3d 839, 901 N.Y.S.2d 146, 927 N.E.2d 567). Finally, defendant's contention with respect to his motion to vacate the judgment [94 A.D.3d 1452] and to set aside the sentence pursuant to CPL 440.10 and 440.20 is “not properly before us on appeal from the [942 N.Y.S.2d 728] judgment of c......
  • People v. Williams
    • United States
    • New York Supreme Court Appellate Division
    • April 20, 2012
    ...Slip Op. 0302594 A.D.3d 1452942 N.Y.S.2d 845The PEOPLE of the State of New York, Respondent,v.Tarias D. WILLIAMS, Defendant–Appellant.Supreme Court, Appellate Division, Fourth Department, New York.April 20, Appeal from a judgment of the Supreme Court, Monroe County (David D. Egan, J.), rend......
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