IN THE MATTER OF KEVIN P. BRINK, PETITIONER-APPELLANT,
KIMBERLY M. BRINK, RESPONDENT-RESPONDENT.
J. VELLA, SPRINGVILLE, FOR PETITIONER-APPELLANT.
BENNETT, DIFILIPPO & KURTZHALTS, LLP, EAST AURORA (MAURA
C. SEIBOLD OF COUNSEL), FOR RESPONDENT-RESPONDENT.
PRESENT: WHALEN, P.J., SMITH, CARNI, DEJOSEPH, AND CURRAN,
from an order of the Family Court, Cattaraugus County
(Michael L. Nenno, J.), entered April 14, 2015 in a
proceeding pursuant to Family Court Act article 4. The order
denied the objections of petitioner to an order of a Support
Magistrate denying his petition.
hereby ORDERED that the order so appealed from is unanimously
reversed on the law without costs, the petition is
reinstated, and the matter is remitted to Family Court,
Cattaraugus County, for further proceedings in accordance
with the following memorandum: Petitioner father commenced
this proceeding seeking a downward modification of his child
support obligation. We agree with the father that Family
Court erred in concluding, following a hearing, that he
failed to establish a sufficient change in circumstances to
warrant such a modification.
father and respondent mother are the parents of two minor
children, born in 2001 and 2004, respectively. The parties
were divorced in 2006, and the judgment incorporated a
voluntary agreement concerning, inter alia, child custody,
visitation, and support. With respect to child custody and
visitation, the parties agreed to joint custody and to
"reasonable" but unspecified amounts of visitation
"consistent with the current arrangement." With
respect to child support, the parties explicitly agreed to
opt out of the requirements of the Child Support Standards
Act in favor of a provision requiring the father to pay the
mother $185 per week. In 2008, the parties informally agreed
to increase the father's child support obligation from
$185 weekly to $407.36 biweekly. In 2010, the parties
informally agreed to increase the father's visitation by
one additional day per week. The visitation arrangement has
remained essentially unchanged since that time.
2012, the father filed a petition to reduce his child support
obligation, arguing that the increased visitation since 2010
and a reduction in his income warranted a downward
modification; the mother also filed a petition seeking to
enforce and incorporate the 2008 informal agreement into the
2006 divorce judgment. The court (William Gabler, S.M.)
denied the father's petition and granted the mother's
petition in 2013. Despite noting that the father
"offer[ed] proof that his income for 2013 will be less
than his earnings in... 2012, " the court explicitly
declined to consider income data from calendar year 2013 in
adjudicating the father's petition.
father subsequently filed the instant modification petition
in 2014, arguing that a downward modification was warranted
given the increased visitation level since 2010 and the fact
that, owing to a job loss, the father made significantly less
money in 2013 than he did in 2012. The court (Schavon R.
Morgan, S.M.) denied the petition following an evidentiary
hearing. In its written decision, the court held that the
father failed to demonstrate any change in circumstances
since the 2013 order. In particular, the court held that the
father's income reduction from 2012 to 2013 did not
constitute the requisite change in circumstances
"because this [income reduction] took place before the
hearing whereby the current  order of support was
determined." Family Court (Michael L. Nenno, J.)
thereafter overruled the father's objections to the
Support Magistrate's determination and confirmed the
order denying the petition. That was error.
parent seeking to modify a child support order arising out of
an agreement or stipulation must demonstrate that the
agreement was unfair when entered into or that there has been
a substantial, unanticipated and unreasonable change in
circumstances warranting a downward modification"
(Matter of Hoyle v Hoyle, 121 A.D.3d 1194, 1195; see
Merl v Merl, 67 N.Y.2d 359, 362; Matter of Cooper v Cooper,
74 A.D.3d 1868, 1868). Inasmuch as the father is seeking to
modify the 2013 order, the relevant period for evaluating a
change of circumstances is the period between the issuance of
the 2013 order and the filing of the instant petition in 2014
(see Klapper v Klapper, 204 A.D.2d 518, 519; see
also Leroy v Leroy, 298 A.D.2d 923, 923-924; Matter
of Dukes v White, 295 A.D.2d 899, 899; see generally
Matter of Loveless v Goldbloom, 141 A.D.3d 662, 663).
father identifies two circumstances that, in his view, have
changed sufficiently to warrant a recalculation of his child
support obligation. First, he claims that "the parties
now have the children an equal amount of time." As he
admitted at the hearing, however, that change in the
visitation schedule occurred years before the 2013 order and
thus cannot serve as the basis for any recalculation of his
child support obligation (see Matter of Hrostowski v
Micha, 132 A.D.3d 1103, 1104-1105; Matter of
DiCiacco v DiCiacco, 89 A.D.3d 937, 938; Matter of
Grayson v Fenton, 13 A.D.3d 914, 915).
the father cites his significantly reduced income from 2012
to 2013 as the requisite change in circumstances. We agree
with the father that such income reduction-approximately
18%-constitutes a sufficient change in circumstances to
warrant a recalculation of his child support obligation
(cf. Family Ct Act § 451  [b] [ii]; see
generally Matter of Zibell v Zibell, 112 A.D.3d 1101,
1102). Contrary to the Support Magistrate's
determination, the father's income changes in 2013 were
not before the court in connection with the prior
modification petition inasmuch as the Support Magistrate in
that proceeding explicitly declined to consider any income
data from calendar year 2013, instead limiting his analysis
to the parties' income data from 2012 and years prior. We
therefore reverse the order, reinstate the petition, ...