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In re Rizzo

Supreme Court of New York, Second Department

July 26, 2017

In the Matter of Michael J. Rizzo, appellant,
v.
Kathleen J. Scheiner Spear, respondent. Docket No. F-909-05/15L

          Submitted - June 22, 2017

         D52919 M/afa

          Law Offices of Michael J. Langer, P.C., Mineola, NY, for appellant.

          Law Offices of Barry J. Fisher, P.C., Garden City, NY (Cheryl L. Jakinovich of counsel), for respondent.

          REINALDO E. RIVERA, J.P. MARK C. DILLON FRANCESCA E. CONNOLLY ANGELA G. IANNACCI, JJ.

          DECISION & ORDER

         Appeal by the father from an order of the Family Court, Nassau County (Conrad D. Singer, J.), dated September 14, 2016. The order denied the father's objections to an order of that court (Adam E. Small, S.M.) dated July 5, 2016, which, after a hearing, denied his petition for a downward modification of his child support obligation.

         ORDERED that the order is affirmed, without costs or disbursements.

         In an order dated April 24, 2014, upon the parties' consent, the Family Court directed the father to pay child support for the parties' child in the amount of $2, 190 per month. In September 2015, the father filed a petition for a downward modification of his child support obligation, alleging, as a substantial change in circumstances, that his income had decreased. At a hearing, at which the father appeared pro se, the Support Magistrate directed the father not to testify from a document he prepared for the hearing. Following the hearing, the Support Magistrate determined that the father failed to present credible evidence demonstrating that a substantial change of circumstances had occurred and issued an order denying the petition. The father filed objections to the Support Magistrate's order, arguing that the Support Magistrate deprived him of a fair hearing by directing him not to use documents in support of his case and that the denial of the petition was improper because he presented credible evidence that his income had dropped, that he was unable to find suitable alternative employment, and that he had been forced to liquidate significant assets to pay expenses. The Family Court denied the father's objections to the Support Magistrate's order, and the father appeals.

         Contrary to the father's contention, he was not denied his right to a fair hearing because the Support Magistrate directed him not to read from a document that he prepared for the hearing (see generally Grow Tunneling Corp., Peter Kiewit Sons' Corp. & Morrison-Knudsen Co. v Consolidated Edison Co. of N.Y., 195 A.D.2d 325, 326; Matter of Baby Boy B., 163 A.D.2d 673, 675). To the extent the father argues that other evidentiary errors deprived him of a fair hearing, since he failed to object to these alleged errors, the arguments are unpreserved for appellate review (see Matter of Rafferty v Ettinger, 150 A.D.3d 1016; Matter of Hubbard v Barber, 107 A.D.3d 1344, 1345) and, in any event, without merit.

         Moreover, 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. Since the current child support order was issued in April 2014, the father's petition must be analyzed in the context of the 2010 amendments to FamilyCourt Act § 451. Section 451 of the Family Court Act "allows a court to modify an order of child support without requiring a party to allege or demonstrate a substantial change in circumstances, where either party's gross income has changed by 15% or more since the order was entered or modified" (Matter of Zibell v Zibell, 112 A.D.3d 1101, 1102; see Family Ct Act § 451[3][b][ii]), or "where three years or more have passed since the order was entered, last modified, or adjusted" (Matter of Thomas v Fosmire, 138 A.D.3d 1007, 1007; see Family Ct Act § 451[3][b][i]; Matter of Lagani v Li, 131 A.D.3d 1246, 1247-1248). Here, the Support Magistrate should have considered whether the father was entitled to a downward modification of his child support obligation pursuant to Family Court Act § 451(b)(3)(ii). Nevertheless, the Support Magistrate properly placed the burden on the father to provide evidence in support of his petition, including specific evidence that his loss of income was involuntary and that he made a diligent, good faith effort to secure other employment commensurate with his education, ability, and experience (see Matter of Addimando v Huerta, 147 A.D.3d 750, 751-752; Matter of Thomas v Fosmire, 138 A.D.3d at 1008; Matter of Rolko v Intini, 128 A.D.3d 705, 706; Matter of Baumgardner v Baumgardner, 126 A.D.3d 895, 896-897), and he failed to satisfy this burden.

         On appeal, deference should be given to the credibility determinations of the Support Magistrate, who was in the best position to evaluate the credibility of witnesses (see Matter of Rubenstein v Rubenstein,114 A.D.3d 798, 798; Matter of Gansky v Gansky,103 A.D.3d 894, 895). Here, the record supports the Support Magistrate's determination that the father did not testify credibly regarding his ability to satisfy his current support obligations. Contrary to the father's contention, he failed to adduce sufficient credible evidence that his income had decreased through no fault of his own and that he had made a diligent, good faith effort to secure other employment commensurate with his education, ability, and experience (see Matter of Addimando v Huerta, 147 A.D.3d at 752; Matter of Fantau v Fantau,134 A.D.3d 1109, 1110; Matter of Rolko v Intini, 128 A.D.3d at 706; Matter of ...


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