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Figueroa v. Herring

SUPREME COURT OF THE STATE OF NEW YORK APPELLATE DIVISION SECOND JUDICIAL DEPARTMENT


April 28, 2009

IN THE MATTER OF PAUL FIGUEROA, APPELLANT,
v.
LYNN HERRING, RESPONDENT.

In a support proceeding pursuant to Family Court Act article 4, the father appeals from an order of the Family Court, Orange County (Woods, J.), entered January 7, 2008, denying his objections to an order of the same court (Krahulik, S.M.), dated October 15, 2007, which, without a hearing, denied his petition for a downward modification of his child support obligation.

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

REINALDO E. RIVERA, J.P., RUTH C. BALKIN, JOHN M. LEVENTHAL and PLUMMER E. LOTT, JJ.

(Docket No. F-2404-06)

DECISION & ORDER

ORDERED that the order entered January 7, 2008, is affirmed, without costs or disbursements.

The father sought a downward modification of an initial order of support dated October 19, 2006, in which the Support Magistrate found, after a hearing, that his account of his limited income and undocumented medical problems was incredible, and imputed annual income to him in the sum of $42,259.36. The Family Court denied the father's objections to the Support Magistrate's denial, without a hearing, of his petition. We affirm.

"Upon an application to modify, set aside or vacate an order of support, no hearing shall be required unless such application shall be supported by affidavit and other evidentiary material sufficient to establish a prima facie case for the relief requested" (Family Ct Act § 451; see Matter of Suffolk County Dept. of Social Servs. v Spinale, 57 AD3d 681, 683; D'Alesio v D'Alesio, 300 AD2d 340, 341). "The party seeking modification of a support order has the burden of establishing the existence of a substantial change in circumstances warranting the modification" (Matter of Nieves-Ford v Gordon, 47 AD3d 936, 936; see Matter of Marrale v Marrale, 44 AD3d 773, 775; Carr v Carr, 187 AD2d 407, 408).

Having failed to show a substantial change in circumstances since the prior support proceeding, the father was precluded from relitigating the issue in the subsequent proceeding on his petition for a downward modification (see Matter of Solis v Marmolejos, 50 AD3d 691, 692; Matter of Lacome v Marius, 4 AD3d 430, 430; Matter of Kleiger-Brown v Brown, 306 AD2d 482, 483). Accordingly, the Family Court properly denied the father's objections to the Support Magistrate's order, which, without a hearing, denied his petition to modify a prior order of child support.

RIVERA, J.P., BALKIN, LEVENTHAL and LOTT, JJ., concur.

20090428

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