Rubenstein v. Rubenstein

• Decision Date: 13 February 2014
• Citation: 980 N.Y.S.2d 531,114 A.D.3d 798,2014 N.Y. Slip Op. 01009
• Parties: In the Matter of Gail T. RUBENSTEIN, respondent, v. Michael A. RUBENSTEIN, appellant.
• Court: New York Supreme Court — Appellate Division

114 A.D.3d 798
980 N.Y.S.2d 531
2014 N.Y. Slip Op. 01009

In the Matter of Gail T. RUBENSTEIN, respondent,
v.
Michael A. RUBENSTEIN, appellant.

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

Feb. 13, 2014.

[980 N.Y.S.2d 532]

Phillip J. Jusino, Lake Grove, N.Y., for appellant.

Judd & Moss, P.C., Ronkonkoma, N.Y. (Francine H. Moss of counsel), for respondent.

RUTH C. BALKIN, J.P., CHERYL E. CHAMBERS, PLUMMER E. LOTT, and SYLVIA O. HINDS–RADIX, JJ.

In a child support proceeding pursuant to Family Court Act article 4, the father appeals from (1) an order of the Family Court, Suffolk County (Luft, J.), dated February 5, 2013, which denied his objections to an order of the same court (Lynnaugh, S.M.), dated May 17, 2012, which, after a hearing and upon findings of fact dated May 11, 2012, dismissed his petition for a downward modification of his child support obligation and determined that he willfully violated an order of child support of the same court (Joseph–Cherry, S.M.), dated June 9, 2010, and (2) an order of the same court (Luft, J.), also dated February 5, 2013, which denied his objections to an order of the same court (Lynnaugh, S.M.), dated December 14, 2012, which granted the mother's motion for an award of an attorney's fee.

ORDERED that the orders are affirmed, with one bill of costs.

A party seeking modification of a child support order has the burden of establishing the existence of a substantial change in circumstances warranting the modification ( see Matter of French v. Gordon, 103 A.D.3d 722, 960 N.Y.S.2d 143;Matter of Suyunov v. Tarashchansky, 98 A.D.3d 744, 745, 950 N.Y.S.2d 399). A parent's loss of employment may constitute a substantial change in circumstances ( see Matter of Suyunov v. Tarashchansky, 98 A.D.3d at 745, 950 N.Y.S.2d 399;Matter of Ceballos v. Castillo, 85 A.D.3d 1161, 1162, 926 N.Y.S.2d 142). A party seeking a downward modification of his or her child support obligation based upon a loss of employment has the burden of demonstrating that his or her employment was terminated through no fault of his or her own, and that he or she made diligent attempts to secure employment commensurate with his or her education, ability, and experience ( see Matter of Suyunov v. Tarashchansky, 98 A.D.3d at 745, 950 N.Y.S.2d 399;Matter of Ceballos v. Castillo, 85 A.D.3d at 1162, 926 N.Y.S.2d 142;Matter of Muselevichus v. Muselevichus, 40 A.D.3d 997, 998, 836 N.Y.S.2d 661;

[980 N.Y.S.2d 533]

Family Ct. Act § 451[2][b][ii]...