Suyunov v. Tarashchansky

• Decision Date: 29 August 2012
• Parties: In the Matter of Boris SUYUNOV, respondent, v. Julia TARASHCHANSKY, appellant. (Proceeding No. 1) In the Matter of Julia Tarashchansky, appellant, v. Boris Suyunov, respondent. (Proceeding No. 2) In the Matter of Julia Tarashchansky, appellant, v. Boris Suyunov, respondent. (Proceeding No. 3).
• Court: New York Supreme Court — Appellate Division

98 A.D.3d 744

950 N.Y.S.2d 399

2012 N.Y. Slip Op. 06079

In the Matter of Boris SUYUNOV, respondent,

v.Julia TARASHCHANSKY, appellant. (Proceeding No. 1)

In the Matter of Julia Tarashchansky, appellant,

v.Boris Suyunov, respondent. (Proceeding No. 2)

In the Matter of Julia Tarashchansky, appellant,

v.Boris Suyunov, respondent. (Proceeding No. 3).

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

Aug. 29, 2012.

Julia Tarashchansky, Brooklyn, N.Y., appellant pro se.

Flora Rainer, Glendale, N.Y., for respondent.

PETER B. SKELOS, J.P., ANITA R. FLORIO, SHERI S. ROMAN, and ROBERT J. MILLER, JJ.

In three related child support proceedings pursuant to Family Court Act article 4, the mother appeals from an order of the Family Court, Kings County (Toussaint, J.), dated April 11, 2011, which denied her objections to so much of an order of the same court (Baur, S.M.), dated July 7, 2010, as, after a hearing, granted the father's petition for a downward modification of his child support obligation set forth in an order dated April 10, 2007, in effect, denied that branch of her petition which was for an upward modification of the father's child support obligation, and granted that branch of her separate petition which was to enforce the order dated April 10, 2007, only to the extent of directing the father to pay the sum of $363 for unreimbursed medical expenses.

ORDERED that the order dated April 11, 2011, is affirmed, with costs.

In reviewing a determination of the Family Court, deference should be given to the credibility determinations of the Support Magistrate, who was in the best position to evaluate the credibility of the witnesses ( see Matter of Kirchain v. Smith, 84 A.D.3d 1237, 923 N.Y.S.2d 860). Here, the record supports the Support Magistrate's findings that the father was entitled to a downward modification of his child support obligation based upon his loss of employment.

A 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 Bouie v. Joseph, 91 A.D.3d 641, 936 N.Y.S.2d 276;Matter of Nieves–Ford v. Gordon, 47 A.D.3d 936, 850 N.Y.S.2d 588). Loss of employment may constitute a substantial change in circumstances ( see Matter of Ceballos v. Castillo, 85 A.D.3d 1161, 926 N.Y.S.2d 142;Baker v. Baker, 83 A.D.3d 977, 922 N.Y.S.2d 442;Matter of Getty v. Getty, 83 A.D.3d 835, 920 N.Y.S.2d 673). 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 he or she diligently sought to obtain employment commensurate with his or her earning capacity ( see Matter of Ceballos v. Castillo, 85 A.D.3d 1161, 926 N.Y.S.2d 142;Matter of Belmonte v. Dreher, 77 A.D.3d 937, 909 N.Y.S.2d 394).

Here, the father demonstrated that his loss of employment constituted a substantial change in circumstances and that he made a good faith effort to obtain new employment commensurate with his qualifications and experience ( see Matter of Ceballos v. Castillo, 85 A.D.3d 1161, 926 N.Y.S.2d 142;Matter of Getty v. Getty, 83 A.D.3d 835, 920 N.Y.S.2d 673). In response, the mother failed to prove that the father had any undisclosed income, or that the father's efforts to obtain employment were fabricated.

The...