Scotti v. Scotti

• Decision Date: 22 March 2011
• Parties: In the Matter of Del M. SCOTTI, appellant, v. Andrea M. SCOTTI, respondent.
• Court: New York Supreme Court — Appellate Division

918 N.Y.S.2d 891

82 A.D.3d 1107

In the Matter of Del M. SCOTTI, appellant,

v.Andrea M. SCOTTI, respondent.

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

March 22, 2011.

Richard M. Gold, Bohemia, N.Y., for appellant.

Lewis A. Silverman, Central Islip, N.Y., for respondent.

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 (Joseph-Cherry, S.M.), dated May 26, 2010, which, after a hearing, in effect, denied his petition for a downward modification of his child support obligation, (2) an order of the same court (Joseph-Cherry, S.M.), dated June 11, 2010, which "reinstated" an order of child support of the same court (Rodriguez, S.M.), dated September 22, 2008, retroactive to June 9, 2009, and (3) an order of the same court (Hoffman, J.), dated July 16, 2010, which denied his objections to the orders dated May 26, 2010, and June 11, 2010.

ORDERED that the appeals from the orders dated May 26, 2010, and June 11, 2010, are dismissed, without costs or disbursements, as those orders were superseded by the order dated July 16, 2010; and it is further,

ORDERED that the order dated July 16, 2010, is affirmed, without costs or disbursements.

A parent seeking downward modification of a child support obligation has the burden of establishing a substantial and unanticipated change in circumstances ( see Matter of Mera v. Rodriguez, 74 A.D.3d 974, 974, 904 N.Y.S.2d 83). In order to meet that burden, a party seeking a downward modification based on a loss of employment must submit evidence demonstrating that he or she has diligently sought to obtain employment commensurate with that party's earning capacity ( see Matter of Mera v. Rodriguez, 74 A.D.3d at 974, 904 N.Y.S.2d 83; Matter of Muselevichus v. Muselevichus, 40 A.D.3d 997, 998, 836 N.Y.S.2d 661; Matter of Yepes v. Fichera, 230 A.D.2d 803, 804, 646 N.Y.S.2d 533; Matter of Meyer v. Meyer, 205 A.D.2d 784, 614 N.Y.S.2d 42; see also Matter of Davis v. Davis, 197 A.D.2d 622, 623, 602 N.Y.S.2d 672).

Here, the unsubstantiated conclusory allegations of the father that he diligently sought employment commensurate with his qualifications and experience were insufficient to meet his burden ( see Matter of Peterson v. Peterson, 75 A.D.3d 512, 513, 904 N.Y.S.2d 500; Matter of Gedacht v. Agulnek, 67 A.D.3d 1013, 890 N.Y.S.2d 76; Matter of Yepes v. Fichera, 230 A.D.2d at 804, 646 N.Y.S.2d 533). Therefore, the Support Magistrate properly denied the father's petition for a downward modificationof his child support obligation ( see Matter of Gedacht v. Agulnek, 67 A.D.3d 1013, 890...