New York Supreme and/or Appellate Courts Appellate Division, First Department
January 5, 2012
CRISTINA MILLER, PETITIONER-RESPONDENT,
KEVIN S. MILLER, RESPONDENT-APPELLANT.
Miller v Miller
Decided on January 5, 2012
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.
Andrias, J.P., Saxe, Sweeny, Acosta, Manzanet-Daniels, JJ.
Order, Family Court, New York County (Jody Adams, J.), entered on or about October 5, 2010, which denied respondent father's objection to an order, same court (Ann Marie Loughlin, Support Magistrate), entered on or about May 7, 2010, dismissing his petition for a downward modification of child support obligation, unanimously affirmed, without costs.
By so-ordered stipulation dated April 8, 2008, respondent father agreed to pay child support for the parties' two children in the amount of $977.07 per month. Less than a year later, by petition dated January 26, 2009, he sought a downward modification based on a "change of circumstances." At an April 27, 2009 hearing, the father testified that after he was laid off as a home inspector on January 10, 2009, he supported himself working three part-time jobs, but that his income was not enough to meet his child support obligation. One of those jobs was at Best Buy, where the father had worked since 2008.
The record supports the Support Magistrate's determination that the father failed to meet his burden of demonstrating a substantial and unanticipated change in circumstances warranting a downward modification of his child support obligation (see Basile v Wiggs, 82 AD3d 921, 922 ; Matter of Virginia S. v Thomas S., 58 AD3d 441 ).
At the time the 2008 stipulation was entered, the father represented that his gross income from all sources for 2007 was approximately $22,176. Nevertheless, he agreed that "whenever a calculation is to be made in the future utilizing [his] gross income, the parties shall utilize the greater of: (1)[his] actual gross income from all sources for the prior Calendar year; or (2) $50,000." Although the parties agreed that the father could petition the court for modification of the stipulation, in accord with the provisions of the Child Support Standards Act (Domestic Relations Law § 240[1-b]) should he "become disabled and or unemployed," the record demonstrates that while the father was no longer engaged in the home inspection business, he was still employed, albeit on a part-time basis, when he filed his modification petition.
Regardless of whether, as the Support Magistrate found, the father had unexplained foreign income, his 2008 income tax return, filed jointly with his wife, reported total income of $138,230. On the record before us, we cannot determine the portion of that income that was attributed to him individually (see Family Court Act § 413[b][i]). His 2009 return, filed individually, reported total income of $86,659, of which $19,732 was wages and $1,704 was business income, an amount substantially similar to the $22,176 per year he claimed to be earning when the 2008 stipulation was entered. Moreover, the father did not demonstrate that he diligently sought to obtain employment commensurate with his earning capacity (see Matter of Mera v Rodriguez, 74 AD3d 974 ).
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: JANUARY 5, 2012
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