Matter of Muselevichus v. Muselevichus
| Decision Date | 22 May 2007 |
| Docket Number | Docket No. F04144-00/05D.,2006-03136. |
| Citation | 836 N.Y.S.2d 661,2007 NY Slip Op 04495,40 A.D.3d 997 |
| Parties | In the Matter of JOSEPH L. MUSELEVICHUS, JR., Appellant, v. EVA M. MUSELEVICHUS, Respondent. |
| Court | New York Supreme Court — Appellate Division |
Ordered that the order is affirmed insofar as appealed from, with costs.
The father filed a petition in the Family Court, seeking a downward modification of his child support obligation for the parties' two children, based on the emancipation of the older child, as well as the father's loss of full-time employment and the resulting decrease in his income. After a hearing, the Support Magistrate issued an order which, inter alia, dismissed the father's petition, and the father filed objections to that order. In an order dated March 6, 2006, the Family Court granted the father's objection which was based on the older child's emancipation, remitted the matter to the Support Magistrate with instructions to recalculate the father's support obligation accordingly, and denied the father's remaining objections on the merits. The father appeals from so much of the order as denied his remaining objections. Because we conclude that the Family Court properly denied the remaining objections, we affirm the order insofar as appealed from.
A downward modification of a parent's child support obligation may be granted where the parent demonstrates a substantial and unanticipated change in circumstances (see Matter of Yepes v Fichera, 230 AD2d 803 [1996]; Matter of Fries v Price-Yablin, 209 AD2d 1002 [1994]). A parent's loss of employment may constitute such a change in circumstances, justifying a downward modification, where the termination occurred through no fault of the parent and the parent has diligently sought re-employment (see Beard v Beard, 300 AD2d 268 [2002]; Matter of Yepes v Fichera, supra; Matter of Meyer v Meyer, 205 AD2d 784 [1994]). The proper amount of support to be paid, however, is determined not by the parent's current economic situation, but by the parent's assets and earning capacity (see Hickland v Hickland, 39 NY2d 1, 5-6 [1976]; Beard v Beard, supra; Matter of Yepes v Fichera, supra; Matter of Fries v Price-Yablin, supra). Therefore, a parent seeking a downward modification based on a loss of employment must demonstrate that he or she has made "a good-faith effort to obtain employment commensurate with his or her qualifications and experience" (Beard v Beard, supra, at 269; see Matter of Yepes v Fichera, supra).
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