Rizzo v. Spear

• Decision Date: 26 July 2017
• Docket Number: 2016-11093, Docket No. F-909-05/15L.
• Citation: 152 A.D.3d 774,59 N.Y.S.3d 126
• Parties: In the Matter of Michael J. RIZZO, appellant, v. Kathleen J. Scheiner SPEAR, respondent.
• Court: New York Supreme Court — Appellate Division

152 A.D.3d 774

59 N.Y.S.3d 126

In the Matter of Michael J. RIZZO, appellant,

v.Kathleen J. Scheiner SPEAR, respondent.

2016-11093, Docket No. F-909-05/15L.

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

July 26, 2017.

Law Offices of Michael J. Langer, P.C., Mineola, NY, for appellant.

Law Offices of Barry J. Fisher, P.C., Garden City, NY (Cheryl L. Jakinovich of counsel), for respondent.

REINALDO E. RIVERA, J.P., MARK C. DILLON, FRANCESCA E. CONNOLLY, and ANGELA G. IANNACCI, JJ.

Appeal by the father from an order of the Family Court, Nassau County (Conrad D. Singer, J.), dated September 14, 2016. The order denied the father's objections to an order of that court (Adam E. Small, S.M.) dated July 5, 2016, which, after a hearing, denied his petition for a downward modification of his child support obligation.

ORDERED that the order is affirmed, without costs or disbursements.

In an order dated April 24, 2014, upon the parties' consent, the Family Court directed the father to pay child support for the parties' child in the amount of $2,190 per month. In September 2015, the father filed a petition for a downward modification of his child support obligation, alleging, as a substantial change in circumstances, that his income had decreased. At a hearing, at which the father appeared pro se, the Support Magistrate directed the father not to testify from a document he prepared for the hearing. Following the hearing, the Support Magistrate determined that the father failed to present credible evidence demonstrating that a substantial change of circumstances had occurred and issued an order denying the petition. The father filed objections to the Support Magistrate's order, arguing that the Support Magistrate deprived him of a fair hearing by directing him not to use documents in support of his case and that the denial of the petition was improper because he presented credible evidence that his income had dropped, that he was unable to find suitable alternative employment, and that he had been forced to liquidate significant assets to pay expenses. The Family Court denied the father's objections to the Support Magistrate's order, and the father appeals.

Contrary to the father's contention, he was not denied his right to a fair hearing because the Support Magistrate directed him not to read from a document that he prepared for the hearing (see generally Grow Tunneling Corp., Peter Kiewit Sons' Corp. & Morrison–Knudsen Co. v. Consolidated Edison Co. of N.Y., 195 A.D.2d 325, 326, 600 N.Y.S.2d 30 ; Matter of Baby Boy B., 163 A.D.2d 673, 675, 558 N.Y.S.2d 281 ). To the extent the father argues that other evidentiary errors deprived him of a fair hearing, since he failed to object to these alleged errors, the arguments are unpreserved for appellate review (see Matter of Rafferty v. Ettinger, 150 A.D.3d 1016, 55 N.Y.S.3d 145 ; Matter of Hubbard v. Barber, 107 A.D.3d 1344, 1345, 968 N.Y.S.2d 245 ) and, in any event, without merit.

Moreover, the Family Court correctly denied the father's objections to the Support Magistrate's denial of his petition for a downward modification of his child support obligation. Since the current child support order was issued in April 2014, the father's petition must be analyzed in the context of the 2010 amendments to Family Court Act § 451. Section 451 of the Family Court Act"allows a court to modify an order of child support without requiring a party to allege or demonstrate a substantial change in circumstances, where either party's gross income has changed by 15% or more since the order was entered or modified" (Matter of Zibell v. Zibell, 112 A.D.3d 1101, 1102, 976 N.Y.S.2d 625 ; see Family Ct. Act § 451[3][b][ii] ), or "where three years or more have passed since the order was entered, last modified, or adjusted" (Matter of Thomas v. Fosmire, 138 A.D.3d 1007, 1007, 30 N.Y.S.3d 268 ; see Family Ct. Act § 451[3][b][i] ; Matter of Lagani v. Li, 131 A.D.3d 1246, 1247–1248, 16 N.Y.S.3d 863 ). Here, the Support Magistrate should have considered whether the father was entitled to a downward modification of his...