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In re Addimando

Supreme Court of New York, Second Department

February 1, 2017

In the Matter of Christina Addimando, respondent,
v.
Michael Huerta, Sr., appellant. Docket No. F-1383-12/13F, G, H

          Gloria Marchetti-Bruck, Mount Kisco, NY, for appellant.

          CHERYL E. CHAMBERS, J.P., LEONARD B. AUSTIN, JOSEPH J. MALTESE, COLLEEN D. DUFFY, JJ.

          DECISION & ORDER

         Appeal by the father from an order of the Family Court, Westchester County (Rachel Hahn, J.), dated February 4, 2015. The order denied the father's objections to an order of that court (Rosa Cabanillas Thompson, S.M.) entered December 4, 2013, which, after a hearing, inter alia, found that he was in wilful violation of a prior order of child support, and denied his objections to so much of an order of that court (Rosa Cabanillas Thompson, S.M.) entered December 9, 2013, as, after a hearing, denied his petition for a downward modification of his child support obligation.

         ORDERED that the order dated February 4, 2015, is affirmed, without costs or disbursements.

         The mother and the father have two children together. A child support order was entered against the father in 1997, directing him to pay the sum of $255 biweekly to the mother. The father failed to make regular payments and, in 2007, the father was directed to make biweekly payments towards child support arrears in the sum of $495 in addition to basic child support. In 2012, his basic child support obligation was increased to the sum of $283 biweekly.

         In 2013, the father filed a petition seeking a downward modification of his child support obligation, claiming that he had lost his job and that the oldest child was emancipated. The mother filed a cross petition for an upward modification of the father's child support obligation and a separate petition to adjudicate the father in wilful violation of the 2012 child support order. In an order entered December 4, 2013, a Support Magistrate found, after a fact-finding hearing, that the father wilfully violated the 2012 child support order. In an order entered December 9, 2013, the Support Magistrate denied the parties' modification petitions. The father filed objections to the Support Magistrate's finding of wilfulness in the order entered December 4, 2013, and the denial of his petition for a downward modification of his child support obligation in the order entered December 9, 2013. In the order appealed from, dated February 4, 2015, the Family Court denied the father's objections.

         The Support Magistrate's finding that the father wilfully violated the 2012 child support order has no force and effect until confirmed by a Family Court Judge (see Family Ct Act § 439[e]). Despite denying the father's objections, the order dated February 4, 2015, did not confirm the Support Magistrate's determination that the father wilfully violated the support order (see Matter of Ortiz-Schwoerer v Schwoerer, 128 A.D.3d 828, 830; Matter of Marin v Cooper, 96 A.D.3d 849, 850). To challenge the determination that he wilfully violated a support order, the father's sole remedy was to await the issuance of a final order or an order of commitment of a Family Court Judge confirming the Support Magistrate's determination, and to appeal from that final order or order of commitment (see Matter of Ortiz-Schwoerer v Schwoerer, 128 A.D.3d at 830; Matter of Flanagan v Flanagan, 109 A.D.3d 470, 471; Matter of Dakin v Dakin, 75 A.D.3d 639, 639-640). Accordingly, the issue of whether the father wilfully violated the 2012 child support order is not properly before us on the appeal from the order dated February 4, 2015 (see Matter of Ortiz-Schwoerer v Schwoerer, 128 A.D.3d at 830).

         The Family Court correctly denied the father's objections to the Support Magistrate's denial of his petition for a downward modification of his child support obligation. "A party seeking to modify an order of child support has the burden of establishing the existence of a substantial change in circumstances warranting the modification" (Matter of Ippoliti v Ippoliti, 134 A.D.3d 844, 845). While "[a] parent's loss of employment may constitute a substantial change in circumstances" (Matter of Rubinstein v Rubenstein, 114 A.D.3d 798, 798), "[t]he proper amount of support to be paid... is determined not by the parent's current economic situation, but by the parent's assets and earning capacity" (Matter of Rolko v Intini, 128 A.D.3d 705, 706 [internal quotation marks omitted]). Thus, a parent seeking downward modification of a child support obligation must submit competent proof that the termination occurred through no fault of the parent and the parent has diligently sought re-employment commensurate with his or her earning capacity (see Matter of Levine-Seidman v Seidman, 88 A.D.3d 883, 884).

         Here, the record supports the Support Magistrate's determination that the father failed to demonstrate a substantial change in circumstances warranting a downward modification of his child support obligation. The father failed to establish that he made a good faith effort to find employment commensurate with his qualifications and experience (see Matter of Rolko v Intini, 128 A.D.3d at 706). He also did not submit evidence showing that his physical disability, with which he has lived since he was a young child, interfered with his ability to work (see Matter of Straker v Maynard-Straker, 133 A.D.3d 865, 866-867; Matter of Karagiannis v Karagiannis, 73 A.D.3d 1064, 1066). The Support Magistrate properly found that the father was capable of working as an attorney and that he made a choice to open a solo practice, which would not turn a profit for several years. While the father was entitled to invest in a new business, it was not a basis for lowering his child support obligation (see Matter of Bustamante v Donawa, 119 A.D.3d 559, 560; Matter of Doyle v Doyle, 230 A.D.2d 795, 796). Indeed, the father did not submit any evidence reflecting that he had pursued other more lucrative opportunities before deciding to open his own practice (see Matter of Rubenstein v Rubenstein, 114 A.D.3d at 799).

         In addition, contrary to the father's contentions, he did not establish that his child support obligation should be downwardly modified on the ground of constructive emancipation or parental alienation. "It is fundamental public policy in New York that parents are responsible for their children's support until age 21" (Kordes v Kordes, 70 A.D.3d 782, 782-783 [internal quotation marks omitted]; see Family Ct Act § 413; Matter of Gold v Fisher, 59 A.D.3d 443, 444). However, under the doctrine of constructive emancipation, "a child of employable age who actively abandons the noncustodial parent by refusing all contact and visitation" may forfeit any entitlement to support (see Matter of Roe v Doe, 29 N.Y.2d 188, 192-193). "A child's mere reluctance to see a parent is not abandonment" (Matter of Barlow v Barlow, 112 A.D.3d 817, 818). "[Furthermore], where it is the parent who causes a breakdown in communication with his [or her] child, or has made no serious effort to contact the child and exercise his [or her] visitation rights, the child will not be deemed to have abandoned the parent" (Matter of Glen L.S. v Deborah A.S., 89 A.D.3d 856, 857 [internal quotation marks omitted]). Here, only the older child was of employable age during the relevant time period (see Matter of McCarthy v McCarthy, 129 A.D.3d 970, 972). Further, the evidence at the hearing failed to demonstrate that the father made sufficient attempts to maintain a relationship with the children, or that the children actively abandoned their relationship with him (see Matter of Gansky v Gansky, 103 A.D.3d 894, 896; Schulman v Schulman, 101 A.D.3d 1098, 1099; Matter of Gold v Fisher, 59 A.D.3d at 444).

         With regard to parental alienation, "[c]hild support payments may be suspended where the custodial parent unjustifiably frustrates the noncustodial parent's right of reasonable access" (Matter of Jurgielewicz v Johnston, 114 A.D.3d 945, 946 [internal quotation marks omitted]; see Matter of Rivera v Echavarria, 48 A.D.3d 578, 578). Here, the father failed to meet his burden of demonstrating that the mother deliberately frustrated or actively interfered with his relationship with the children (see Matter of Jurgielewicz v Johnston, 114 A.D.3d at 946).

         Accordingly, the Family Court properly denied the father's objections to the Support Magistrate's order denying his petition for a ...


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