Matter of Mandelowitz v. Bodden, 2009-01739

• Decision Date: 08 December 2009
• Docket Number: 2009-01739,Docket No. F-7216-04
• Citation: 2009 NY Slip Op 9231,68 A.D.3d 871,890 N.Y.S.2d 634
• Parties: In the Matter of DAVID MANDELOWITZ, Respondent, v. ADELLA BODDEN, Appellant.
• Court: New York Supreme Court — Appellate Division

68 A.D.3d 871

2009 NY Slip Op 9231

890 N.Y.S.2d 634

In the Matter of DAVID MANDELOWITZ, Respondent, v. ADELLA BODDEN, Appellant.

2009-01739

Docket No. F-7216-04

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

Decided December 8, 2009.

In a proceeding pursuant to Family Court Act article 4, the mother appeals from an order of the Family Court, Kings County (Grosvenor, J.), dated January 6, 2009, which denied her objections to an order of the same court (La Freniere, S.M.), dated May 23, 2008, which, after a hearing, inter alia, granted those branches of the father's petition which were for a downward modification of his child support obligation as set forth in an order of the same court entered October 15, 2007, to the extent of reducing his child support obligation from the sum of $610 per month to the sum of $25 per month and for a reduction of his child support arrears to the extent of reducing his arrears for the period October 1, 1996, through April 30, 2008, from the sum of $29,179.30 to the sum of $500.

Ordered that the order dated January 6, 2009, is reversed, on the law, without costs or disbursements, the mother's objections are sustained, the order dated May 23, 2008, is vacated, the petition is denied, and the order entered October 15, 2007, is reinstated.

The mother and the father, who never married, have one child together. In 1996 the mother commenced a proceeding against the father in the Family Court, Kings County, seeking an order of support for the child. In response to the petition, the father claimed that he was disabled and awaiting the receipt of Social Security disability benefits.

The Hearing Examiner determined that the father, notwithstanding his health problems, was able to work in some capacity. In an order dated December 23, 1997, the Hearing Examiner, inter alia, ordered the father to pay the sum of $480 per month in child support retroactive to November 1, 1996. The father filed objections to the Hearing Examiner's order, but the Family Court denied his objections. The father appealed from both orders, but this Court dismissed the appeals for failure to prosecute.

In 1998 the father unsuccessfully sought a downward modification of his child support obligation and an adjustment or cancellation of arrears, with the Hearing Examiner finding, inter alia, that the father had failed to substantiate his claim that his health had deteriorated since the entry of the child support order. The father filed objections to the Hearing Examiner's order dismissing the petition, but the Family Court denied his objections. The father appealed from both orders, but this Court dismissed the appeals for failure to prosecute.

In 1999 the father began receiving Social Security disability benefits retroactive to some time in 1996. Also in 1999, the mother obtained a money judgment against the father for arrears in the sum of $7,434.96.

In 2001 the father unsuccessfully sought a downward modification of his child support obligation and an adjustment of arrears based on, inter alia, his lack of employment.

In 2003 the Support Collection Unit issued a cost-of-living adjustment (hereinafter COLA) order, which increased the father's monthly support obligation from the sum of $480 to the sum of $547. Around that time, the father unsuccessfully sought a downward modification of his child support obligation and an adjustment of arrears based on, inter alia, his collection of disability benefits, with the Support Magistrate issuing an order dated May 28, 2003, continuing the father's $547 monthly child support obligation.

In 2004 the father unsuccessfully sought a downward modification of his child support obligation, with the Support Magistrate issuing an order dated May 12, 2004, again continuing the father's $547 monthly child support obligation and directing the entry of a money judgment in favor of the mother and against the father for arrears in the amount of $21,744.34.

In 2007 the Support Collection Unit issued a COLA order that increased the father's monthly support obligation from the sum of $547 to the sum of $610.

In 2008 the father filed the instant petition seeking a downward modification of his $610 monthly child support obligation as provided for in an order entered October 15, 2007, and an adjustment of arrears. After a hearing, the Support Magistrate granted those branches of the father's petition which were for a downward modification of his child support obligation as set forth in the order entered October 15, 2007, to the extent of reducing his monthly child support obligation from the sum of $610 to the sum of $25 and for a reduction of his child support arrears to the extent of reducing his arrears from the sum of $29,179.30 to the sum of $500. The mother filed objections to the Support Magistrate's order, but the Family Court denied her objections. The mother appeals.

The party seeking to modify a child support order "has the burden of establishing the existence of a substantial change in circumstances warranting the modification" (Matter of Marrale v Marrale, 44 AD3d 773, 775 [2007] [citations omitted]). Importantly, "[i]n determining whether there has been a substantial change in circumstances, the change is measured by comparing the payor's financial situation at the time of the application for a downward modification with that at the time of the order [sought to be modified]" (Matter of Talty v Talty, 42 AD3d 546, 547 [2007] [internal quotation marks and citations omitted]).

Here, in connection with the mother's 1996 petition that resulted in the original child support order of December 23, 1997, the Hearing Examiner found that the father had failed to establish that he was unable to work in any capacity. While it is undisputed that in or around 1999 the father began receiving Social Security disability benefits retroactive to a date prior to the entry of the original child support order, the father failed to establish in connection with his several unsuccessful petitions for downward modification of his child support obligation that he is no longer capable of working in some capacity (see generally Matter of Marrale v Marrale, 44 AD3d at 776). Notably, the father failed either to file objections to, appeal from, and/or perfect...