Tomassi v. Suffolk Cnty. Dep't of Soc. Servs.

• Decision Date: 16 November 2016
• Citation: 2016 N.Y. Slip Op. 07663,144 A.D.3d 930,41 N.Y.S.3d 540
• Parties: In the Matter of James TOMASSI, appellant, v. SUFFOLK COUNTY DEPARTMENT OF SOCIAL SERVICES, respondent-respondent, et al., respondent.
• Court: New York Supreme Court — Appellate Division

144 A.D.3d 930

41 N.Y.S.3d 540

2016 N.Y. Slip Op. 07663

In the Matter of James TOMASSI, appellant,

v.SUFFOLK COUNTY DEPARTMENT OF SOCIAL SERVICES, respondent-respondent, et al., respondent.

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

Nov. 16, 2016.

James Tomassi, Lake Grove, N.Y., appellant pro se.

Dennis M. Brown, County Attorney, Central Islip, N.Y. (Karin A. Bohrer of counsel), for respondent-respondent.

L. PRISCILLA HALL, J.P., SANDRA L. SGROI, BETSY BARROS, and FRANCESCA E. CONNOLLY, JJ.

Appeal by the father from an order of the Family Court, Suffolk County (Bernard Cheng, J.), dated July 9, 2015. The order denied the father's objections to an order of that court (Aletha V. Fields, S.M.) dated May 11, 2015, which, after a hearing, denied his petition for a downward modification of his child support obligation.

ORDERED that the order is affirmed, with costs.

The father filed a petition seeking a downward modification of his child support obligation. The Suffolk County Department of Social Services (hereafter DSS) moved to be added to the proceeding as an interested party because the mother assigned her rights to child support to DSS. The Family Court granted DSS's motion. After a hearing, the Support Magistrate denied the father's petition. The father then filed objections to the Support Magistrate's order, and the court denied the objections. The father appeals.

“The party seeking to modify a child support order ‘has the burden of establishing the existence of a substantial change in circumstances warranting the modification’ ” (Matter of Kasun v. Peluso, 82 A.D.3d 769, 771, 919 N.Y.S.2d 30, quoting Matter of Marrale v. Marrale, 44 A.D.3d 773, 775, 843 N.Y.S.2d 407 ; see Matter of Rolko v. Intini, 128 A.D.3d 705, 706, 9 N.Y.S.3d 101 ; Matter of Mandelowitz v. Bodden, 68 A.D.3d 871, 874, 890 N.Y.S.2d 634 ). “ ‘[I]n determining whether there has been a substantial change in circumstances, the change is measured by comparing the payor's financial situation at the time of the application for a downward modification with that at the time of the order [sought to be modified]’ ” (Matter of Mandelowitz v. Bodden, 68 A.D.3d at 874, 890 N.Y.S.2d 634, quoting Matter of Talty v. Talty, 42 A.D.3d 546, 547, 840 N.Y.S.2d 114 ; see Basile v. Wiggs, 82 A.D.3d 921, 921, 920 N.Y.S.2d 103 ; Matter of Kasun v. Peluso, 82 A.D.3d at 771, 919 N.Y.S.2d 30 ). “A party who fails to credibly and clearly disclose his or her financial circumstances will be unable to establish that there has been a substantial change in circumstances warranting a downward modification of child support” (Matter of Rabasco v. Lamar, 106 A.D.3d 1095, 1096–1097, 966 N.Y.S.2d 190 ).

“Great deference should be given to the determination of the Support Magistrate, who is in the best position to assess the credibility of the witnesses and the evidence proffered” (Matter of Musarra v. Musarra, 28 A.D.3d 668, 669, 814 N.Y.S.2d 657 ; see Matter of Rolko v. Intini, 128 A.D.3d at 706, 9 N.Y.S.3d 101 ; Matter of Thompson v. Coleman, 114 A.D.3d 802, 979 N.Y.S.2d 848 ; Matter of Rutuelo v. Rutuelo, 98 A.D.3d 518, 518, 949 N.Y.S.2d 173 ).

Here, the record supports the determination of the Support Magistrate that the father failed to demonstrate a substantial change in circumstances warranting a downward modification of his child support obligation (see Basile v. Wiggs, 82...