Vasquez v. Powell

• Decision Date: 13 November 2013
• Citation: 2013 N.Y. Slip Op. 07493,974 N.Y.S.2d 552,111 A.D.3d 754
• Parties: In the Matter of Daniel A. VASQUEZ, respondent, v. Kelly J. POWELL, appellant. (Proceeding No. 1) In the Matter of Kelly J. Powell, appellant, v. Daniel A. Vasquez, respondent. (Proceeding Nos. 2 and 3).
• Court: New York Supreme Court — Appellate Division

111 A.D.3d 754

974 N.Y.S.2d 552

2013 N.Y. Slip Op. 07493

In the Matter of Daniel A. VASQUEZ, respondent,

v.Kelly J. POWELL, appellant. (Proceeding No. 1)

In the Matter of Kelly J. Powell, appellant,

v.Daniel A. Vasquez, respondent. (Proceeding Nos. 2 and 3).

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

Nov. 13, 2013.

Glen A. Suarez, Huntington, N.Y., for appellant.

Dawn M. Walsh, Huntington, N.Y. (Gail M. Blasie of counsel), for respondent.

Maria I. Moir, Greenlawn, N.Y., attorney for the child.

REINALDO E. RIVERA, J.P., PETER B. SKELOS, CHERYL E. CHAMBERS, and L. PRISCILLA HALL, JJ.

In related proceedings pursuant to Family Court Act articles 4 and 6, the mother appeals, as limited by her brief, from so much of an order of the Family Court, Suffolk County (Whelan, J.), dated April 20, 2012, as, after a hearing, denied her petition, inter alia, for a downward modification of her child support obligation as set forth in an order of the same court (Joseph–Cherry, S.M.) dated April 19, 2010, and her separate petition to hold the father in civil contempt for allegedly violating a prior order of visitation, and granted the father's petition alleging that she was in willful violation of her child support obligation as set forth in the order dated April 19, 2010, and, among other things, directed her to pay child support in the sum of $5,000 on or before May 31, 2012.

ORDERED that the order dated April 20, 2012, is affirmed insofar as appealed from, without costs or disbursements.

The Family Court properly denied the mother's petition for a downward modification of her child support obligation. “To establish entitlement to a downward modification of a child support order, a party has the burden of showing that there has been a substantial change in circumstances” (Matter of Gansky v. Gansky, 103 A.D.3d 894, 895, 962 N.Y.S.2d 255). A parent's loss of employment may constitute a substantial change in circumstances where the parent has demonstrated that her employment was terminated through no fault of her own and that she diligently sought to obtain re-employment commensurate with her earning capacity ( see Matter of DaVolio v. DaVolio, 101 A.D.3d 1120, 956 N.Y.S.2d 511;Matter of Riendeau v. Riendeau, 95 A.D.3d 891, 892, 943 N.Y.S.2d 215). Here, the record demonstrates that the mother voluntarily left her employment. Furthermore, she failed to show that she diligently sought re-employment. Accordingly, the mother failed to prove a change of circumstances warranting a downward modification of her support obligation.

The mother further sought to suspend child support payments and to cancel her child support arrears based upon the father's alleged violation of a visitation order, and to hold the father in civil contempt for the alleged violation. Initially, deliberate interference by a parent with court-ordered visitation does not constitute a ground to cancel child support arrears ( see Ledgin v. Ledgin, 36 A.D.3d 669, 828 N.Y.S.2d 202). Interference with visitation rights can be a basis for prospectively suspending child support payments, but only “where the custodial parent's actions rise to the level of ‘deliberate frustration’ or ‘active interference’ with the noncustodial parent's visitation rights” ( id. at 670, 828 N.Y.S.2d 202, quoting Weinreich v. Weinreich, 184 A.D.2d 505, 506, 585 N.Y.S.2d 769;see Jones v. Jones, 109 A.D.3d 877, 971 N.Y.S.2d 452). Here, the mother failed to demonstrate that the father actively interfered...