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Shamieka B v. Lishomwa H

New York Supreme and/or Appellate Courts Appellate Division, First Department


February 7, 2012

SHAMIEKA B.,
PETITIONER-RESPONDENT,
v.
LISHOMWA H.,
RESPONDENT-APPELLANT.

Shamieka B. v Lishomwa H.

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.

Decided on February 7, 2012

Saxe, J.P., Friedman, Catterson, Freedman, Manzanet-Daniels, JJ.

Order, Family Court, Bronx County (Fernando H. Silva, J.), entered on or about November 16, 2010, denying respondent father's objections to the Support Magistrate's order of October 7, 2010, which found that respondent willfully refused to pay child support for the subject child from March 2008 through August 2008, awarded petitioner arrears in the principal sum of $13,234.41 for the period from March 28, 2008 to October 1, 2010, and reduced respondent's child support obligation to $300 per month nunc pro tunc to September 14, 2009, unanimously modified, on the facts, to grant the downward modification nunc pro tunc to July 13, 2009, and otherwise affirmed, without costs.

The court properly determined that the father's failure to comply with the child support order from March 28, 2008 through August 21, 2008 was willful since he admitted being employed during this time period, and that he paid other financial obligations (see Matter of Powers v Powers, 86 NY2d 63, 68-70 [1995]).

There was no evidence that the father was prejudiced by the inclusion of arrears from an earlier time period in that the petition advised that the petitioner may amend to include additional arrears, and pleadings are to be liberally construed (CPLR 3026).

In our view, the father demonstrated a substantial change in circumstances as to his child support obligation beginning in July 2009, when his medical records reflect debilitating symptoms related to commencement of chemotherapy (see Matter of Boden v Boden, 42 NY2d 210, 213 [1977]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: FEBRUARY 7, 2012

CLERK

20120207

© 1992-2012 VersusLaw Inc.



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