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In re Rabasco

Supreme Court of New York, Second Department

May 29, 2013

In the Matter of Ronald Rabasco, appellant,
v.
Stacey Lamar, respondent. (Proceeding No. 1) In the Matter of Stacey Lamar, respondent,
v.
Ronald Rabasco, appellant. (Proceeding Nos. 2 & 3) Docket Nos. F-03166-94/11N, F-03166-94/11O, F-03166-94/11P

Ronald Rabasco, Hopewell Junction, N.Y., appellant pro se.

Russell A. Schindler, Kingston, N.Y., for respondent.

DANIEL D. ANGIOLILLO, J.P., L. PRISCILLA HALL, SHERI S. ROMAN, SYLVIA HINDS-RADIX, JJ.

DECISION & ORDER

In related proceedings pursuant to Family Court Act article 4, the father appeals from (1) an order of the Family Court, Dutchess County (Kaufman, S.M.), entered July 8, 2011, which, after a hearing, granted the mother's petition for an upward modification of his child support obligation as set forth in an order of the same court dated January 31, 2005, (2) an order of the same court (Posner, J.), dated May 24, 2012, which denied his objections to the order entered July 8, 2011, (3) an order of the same court (Kaufman, S.M.), entered January 6, 2012, which, after a hearing, dismissed his petition for a downward modification of his child support obligation as set forth in the order dated January 31, 2005, (4) an order of the same court (Posner, J.), also dated May 24, 2012, which denied his objections to the order entered January 6, 2012, (5) an order of the same court (Kaufman, S.M.), dated January 12, 2012, which, after a hearing, granted the mother's petition alleging that he was in willful violation of his child support obligation as set forth in the order dated January 31, 2005, and, inter alia, directed him to pay the mother's counsel fees, and (6) an order of the same court (Posner, J.), also dated May 24, 2012, which, in effect, confirmed the finding of willfulness and denied his objections to the order dated January 12, 2012.

ORDERED that the appeal from the orders entered July 8, 2011, and January 6, 2012, and the order dated January 12, 2012, are dismissed, without costs or disbursements, as those orders were superseded by the three orders dated May 24, 2012; and it is further,

ORDERED that the three orders dated May 24, 2012, are affirmed, without costs or disbursements.

The mother filed a petition for an upward modification of the father's child support obligation as set forth in an order dated January 31, 2005, entered on the parties' consent, so as to require him to pay a pro rata share of their child's college expenses. After a hearing, the Support Magistrate granted the petition. The Family Court denied the father's objections to that order. "[T]he court may direct a parent to contribute to a child's education, even in the absence of special circumstances or a voluntary agreement of the parties" (Matter of Holliday v Holliday, 35 A.D.3d 468, 469; see Matter of Poznik v Froebel, 1 A.D.3d 366, 367; Chan v Chan, 267 A.D.2d 413, 414; Matter of McLoughlin v McLoughlin, 213 A.D.2d 650, 651; Cohen v Cohen, 203 A.D.2d 411, 412; cf. Manno v Manno, 196 A.D.2d 488, 491). In determining whether to award educational expenses, the court must consider the circumstances of the case, the circumstances of the respective parties, the best interests of the children, and the requirements of justice (see Matter of Paccione v Paccione, 57 A.D.3d 900, 903-904; Matter of Holliday v Holliday, 35 A.D.3d at 469; Chan v Chan, 267 A.D.2d at 414; Manno v Manno, 196 A.D.2d at 491).

We reject the father's contention that the Family Court erred in directing him to pay 50% of the child's college tuition as measured by tuition that would be charged for attendance at a SUNY school. The finding of the Support Magistrate that the father's account of his income and claim that he could not afford to contribute toward the child's college tuition was incredible, is supported by the record, and the Support Magistrate's credibility determinations in this regard are entitled to considerable deference (see Matter of Musarra v Musarra, 28 A.D.3d 668, 669).

Nor are we persuaded that the father's petition for a downward modification of his child support obligation was improperly denied after a hearing. "To establish entitlement to a downward modification of a child support order entered on consent, a party has the burden of showing that there has been a substantial change in circumstances" (Matter of Ceballos v Castillo, 85 A.D.3d 1161, 1162; see Matter of Getty v Getty, 83 A.D.3d 835; Matter of Kasun v Peluso, 82 A.D.3d 769; Matter of Jewett v Monfoletto, 72 A.D.3d 688). 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 (see Matter of Moran v Moran, 56 A.D.3d 675; Praeger v Praeger, 162 A.D.2d 671). In light of the Support Magistrate's finding, which is supported by the record, that the father's evidence concerning his income lacked clarity and credibility, he failed to satisfy his burden of proving a substantial change in circumstances so as to warrant a downward modification (see Matter of Carr v Carr, 19 A.D.3d 839, 843).

Finally, the Family Court properly, in effect, confirmed the Support Magistrate's finding, made after a hearing, that the father was in willful violation of the child support order. There is a presumption that a parent has sufficient means to support his or her minor children (see Family Ct Act § 437). Here, the father's undisputed failure to pay the ordered child support constituted prima facie evidence of a willful violation (see Family Ct Act § 454[3][a]), which shifted the burden to him to come forward with competent, credible evidence that his failure to pay support in accordance with the terms of the order was not willful (see Matter of Powers v Powers, 86 N.Y.2d 63, 69; Matter of Rube v Tornheim, 67 A.D.3d 916). The father failed to satisfy that burden and was, therefore, properly found to be in willful violation of the order, and also was properly directed to pay the mother's counsel fees pursuant to Family Court Act § 438(b).

ANGIOLILLO, J.P., HALL, ROMAN and HINDS-RADIX, JJ., concur.


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