Lorenzo v. Lorenzo
| Decision Date | 25 January 2017 |
| Citation | 48 N.Y.S.3d 677,146 A.D.3d 959 |
| Parties | In the Matter of Edwin LORENZO, Jr., appellant, v. Lynda A. LORENZO, respondent. |
| Court | New York Supreme Court — Appellate Division |
Paul A. Boronow, P.C., Garden City, NY, for appellant.
Robert G. Venturo, P.C., Patchogue, NY, for respondent.
CHERYL E. CHAMBERS, J.P., LEONARD B. AUSTIN, SYLVIA O. HINDS–RADIX, and BETSY BARROS, JJ.
Appeals by the father from (1) an order of the Family Court, Suffolk County (Isabel E. Buse, S.M.), dated September 25, 2015, and (2) an order of that court (Bernard Cheng, J.) dated December 22, 2015. The order dated September 25, 2015, after a hearing, denied the father's petition for a downward modification of his child support obligation. The order dated December 22, 2015, denied the father's objections to the order dated September 25, 2015.
ORDERED that one bill of costs is awarded to the mother.
In 2006, the parties entered into a stipulation of settlement that provided that the mother would have residential custody of the parties' children and the father would pay child support in a specified amount each month. The stipulation of settlement was incorporated but not merged into a subsequent judgment of divorce. In February 2015, the father filed a petition for a downward modification of his child support obligation. After a hearing, the Support Magistrate denied the father's petition. Subsequently, the Family Court denied the father's objections to the Support Magistrate's determination.
"Since the parties' stipulation of settlement was executed prior to the effective date of the 2010 amendments to Family Court Act § 451 (see L. 2010, ch. 182, § 13), in order to establish his entitlement to a downward modification of his child support obligation, the father had the burden of establishing a substantial and unanticipated change in circumstances" (Matter of Straker v. Maynard–Straker, 133 A.D.3d 865, 866, 21 N.Y.S.3d 288 ; see Matter of Gadalinska v. Ahmed, 120 A.D.3d 1232, 1233, 992 N.Y.S.2d 115 ; Kayemba v. Kayemba, 46 A.D.3d 994, 995, 846 N.Y.S.2d 801 ). " ‘A parent's loss of employment may constitute a substantial and unanticipated change in circumstances justifying a downward modification of child support where the termination occurred through no fault of the parent and the parent has diligently sought re-employment commensurate with his or her earning capacity’ " (Matter of DaVolio v. DaVolio, 101 A.D.3d 1120, 1121, 956 N.Y.S.2d 511, quoting Matter of Riendeau v. Riendeau, 95 A.D.3d 891, 892, 943 N.Y.S.2d 215 ; see Matter of Holmes v. Holmes, 140 A.D.3d 1066, 1067–1068, 32 N.Y.S.3d 658 ). " ‘In reviewing a determination of the Family Court, deference should be given to the credibility determinations of the Support...
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