Matter of Freedman v. Horike, 506215

• Decision Date: 03 December 2009
• Docket Number: 506215
• Parties: In the Matter of MARK FREEDMAN, Appellant, v. REGAN HORIKE, Respondent. (And Another Related Proceeding.)
• Court: New York Supreme Court — Appellate Division

68 A.D.3d 1205

2009 NY Slip Op 8916

891 N.Y.S.2d 173

In the Matter of MARK FREEDMAN, Appellant, v. REGAN HORIKE, Respondent. (And Another Related Proceeding.)

506215

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

Decided December 3, 2009.

Appeal from an order of the Family Court of Columbia County (Czajka, J.), entered January 6, 2009, which, among other things, granted respondent's application, in two proceedings pursuant to Family Ct Act article 4, to hold petitioner in willful violation of a prior court order.

Mercure, J.

The underlying facts of this matter are more fully set forth in our three prior decisions involving the parties' disputes over the custody and support of their children (see Matter of Horike v Freedman, 37 AD3d 978 [2007]; Matter of Freedman v Horike, 29 AD3d 1093 [2006]; Matter of Freedman v Horike, 26 AD3d 680 [2006]). Briefly, the parties are the divorced parents of two children (born in 1990 and 1998). Following our most recent decision, they entered into a stipulation of settlement, memorialized in an order upon consent dated December 19, 2007, which provided that the total amount of child support arrearage as of June 2007 — approximately $50,000 — would "be in judgment," and that all underlying child support would continue but petitioner (hereinafter the father) was not barred from filing a future petition to modify support due after June 29, 2007.

On December 31, 2007, the father commenced the first of these proceedings, seeking a downward modification of child support, asserting that his employment had terminated and his income was below the poverty level. Shortly thereafter, respondent (hereinafter the mother) filed a petition alleging that the father willfully violated a September 2006 support order. The father also filed orders to show cause seeking reinstatement of his driving privileges and vacatur of an order dismissing another support modification petition.

Following a hearing, a Support Magistrate dismissed the father's petition and motions, and found the father in willful violation of the prior order. Family Court denied the father's objections to the Support Magistrate's determination, prompting this appeal.

We affirm. With respect to the father's argument that he did not willfully violate the prior support order, it is undisputed that he did not meet his support obligations. Thus, he bore the burden of demonstrating "his inability to make the required payments" by "competent, credible evidence" (Matter of Powers v Powers, 86 NY2d 63, 70 [1995]; see Matter of Vickery v Vickery, 63 AD3d 1220, 1221 [2009]). Furthermore, in connection with his request for a modification of support, it was the father's burden to "establish a sufficient change in circumstances warranting the requested downward modification" (Matter of Heyn v Burr, 6 AD3d 781, 782 [2004]). Particularly relevant here, a child support obligation turns on a parent's ability to provide support, rather than the parent's current financial situation (see Matter of Latimer v Cartin, 57 AD3d 1264, 1265 [2008]; Matter of Heyn v Burr, 6 AD3d at 782).

In our view, the father has failed to meet these burdens. Although the father...