Matter of Nieves-Ford v. Gordon
| Decision Date | 29 January 2008 |
| Docket Number | 2006-06041. |
| Parties | In the Matter of ROSLYN NIEVES-FORD, Respondent, v. MICHAEL GORDON, Appellant. |
| Court | New York Supreme Court — Appellate Division |
Ordered that the order is affirmed, with costs.
In 1997 the father filed a petition seeking a downward modification of his child support obligation. Following a hearing, the Support Magistrate denied the petition on the ground that the father had caused his own inability to pay child support. This Court reversed an order of the Family Court, Nassau County, denying the father's objections to the Support Magistrate's denial of his petition (see Matter of Nieves v Gordon, 264 AD2d 446 [1999]), and remitted the matter to the Family Court, Nassau County, for a new hearing and determination. In reversing, this Court found that the Support Magistrate had erred in refusing to allow the father to examine the mother with respect to the actual expenses of the child. Upon remittitur, a new hearing was held and a new determination made.
The party seeking modification of a support order has the burden of establishing the existence of a substantial change in circumstances warranting the modification (see Matter of Marrale v Marrale, 44 AD3d 773 [2007]; Carr v Carr, 187 AD2d 407, 408 [1992]). In exercising its discretion whether to modify a child support order, the Family Court may consider various factors, including "a loss of income or assets by a parent or a substantial improvement in the financial condition of a parent" (Matter of Brescia v Fitts, 56 NY2d 132, 141 [1982] [citations omitted]; see Family Ct Act § 451). Significantly, the court may consider whether a supporting parent's claimed financial difficulties are the result of that parent's intentional conduct (see Matter of Knights v Knights, 71 NY2d 865 [1988]; Matter of Fries v Price-Yablin, 209 AD2d 1002, 1003 [1994]).
It is undisputed that the father caused his own inability to pay child support due to his wrongful conduct resulting in the termination of his employment in 1994. Moreover, it is undisputed that between the termination of his employment in 1994 and the filing of the modification petition in 1997, the father made no attempt to obtain gainful employment. Furthermore, on remittitur, the father failed to establish a substantial improvement in the mother's financial condition warranting a reduction in child support. Accordingly, the Family Court properly denied the father's objections to the denial of his petition for downward modification.
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