MATTER OF BUKOVINSKY v. Bukovinsky
| Decision Date | 27 November 2002 |
| Citation | 299 A.D.2d 786,751 N.Y.S.2d 92 |
| Court | New York Supreme Court — Appellate Division |
| Parties | In the Matter of JOHANN BUKOVINSKY, Appellant-Respondent,<BR>v.<BR>LORI BUKOVINSKY, Respondent-Appellant. (And Another Related Proceeding.) |
Pursuant to a 1997 judgment of divorce, petitioner was awarded physical custody of the parties' three children and respondent was ordered to pay child support in the amount of $100 per week. As is relevant here, respondent was diagnosed in September 1998 as suffering from a depressive illness (dysthymic disorder), with major depressive episodes, and from generalized anxiety disorder. Respondent thereafter petitioned for a downward modification of her child support obligation on the ground that she was medically unable to work, and petitioner subsequently petitioned for a finding that respondent willfully violated prior support orders. Family Court denied respondent's modification petition, by order dated April 13, 1999, after finding that she was able to work in some capacity, albeit not in her prior profession as a nurse, and found respondent in willful violation of prior support orders.
In July 1999, respondent was hospitalized for mental illness and, upon her release, she applied for Social Security disability benefits and again petitioned for modification of her child support obligation. Petitioner thereafter filed a willful violation petition against respondent, and the two pending petitions were joined for trial. After considering the testimony of each party's medical expert, and respondent's receipt of Social Security disability benefits, the Hearing Examiner found that respondent's medical condition did not render her unable to work, imputed an income of $7.50 per hour or $300 per week, and reduced her child support obligation to $60.26 per week. The Hearing Examiner also found that respondent willfully violated prior support orders and imposed a six-month suspended "daytime jail sentence." Both parties timely objected, and Family Court sustained all of the Hearing Examiner's findings, except the determination to impute income at a rate of $7.50 per hour, and remitted for recalculation of respondent's support obligation based on the current minimum wage. Both parties appeal.
Initially, in view of respondent's hospitalization and the medical experts' agreement that respondent can no longer work as a nurse, we find that respondent demonstrated sufficient changed circumstances since Family Court's April 1999 order to warrant modification of her child support obligation (cf. Matter of Mulligan v Mulligan, 291 AD2d 677, 679; Matter of Cohen v Hartmann, 285 AD2d 675, 675). To that end, the Hearing Examiner credited the opinion of petitioner's medical expert that respondent was capable of some work over the opinion of respondent's treating psychiatrist that she...
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