In the Matter of Catherine M. Diaz, respondent,
Kris Smatkitboriharn, appellant. Docket No. F-15223-15/15A
Submitted - January 22, 2018
L. Brown, Jamaica, NY, for appellant.
Yitzhak & Epstein P.C., Great Neck, NY (Erica T. Yitzhak
of counsel), for respondent.
S. ROMAN, J.P. HECTOR D. LASALLE FRANCESCA E. CONNOLLY LINDA
DECISION & ORDER
from an order of the Family Court, Queens County (John M.
Hunt, J.), dated November 23, 2016. The order denied the
father's objections to an order of that court (Sudeep
Kaur, S.M.), dated August 24, 2016, which, after a hearing,
granted the mother's petition for an upward modification
of the father's child support obligation and to direct
the father to pay child support arrears.
that the order dated November 23, 2016, is affirmed, without
costs or disbursements.
parties were married on September 14, 2007, and divorced by a
judgment of divorce dated October 28, 2011. They have three
children together. Pursuant to the terms of a stipulation of
settlement dated March 25, 2011, which was incorporated but
not merged into the judgment ofdivorce, the father was
directed to pay the sum of $200 per month for child support.
In August 2015, the mother filed a petition for an upward
modification of the father's child support obligation and
to direct the father to pay child support arrears for the
period of January 2012 to August 2015. Following a hearing,
at which the father represented himself, in an order dated
August 24, 2016, the Support Magistrate granted the
mother's petition in its entirety. Thereafter, the father
filed timely objections to the Support Magistrate's
order, which the Family Court denied in an order dated
November 23, 2016. The father appeals from the order dated
November 23, 2016.
father's contention that the mother failed to demonstrate
a substantial change in circumstances sufficient to warrant
an upward modification of his child support obligation is not
properly before this Court, as it was not raised in his
objections to the Support Magistrate's order (see
Matter of Daily v Govan, 136 A.D.3d 1029, 1031;
Matter of Worner v Gavin, 134 A.D.3d 1043). In any
event, his contention is without merit.
the parties' stipulation of settlement, which set forth
the father's child support obligation, was executed after
the effective date of the 2010 amendments to Family Court Act
§ 451, in order to establish an entitlement to an upward
modification, the mother had the burden of demonstrating
"a substantial change in circumstances'' (Family
Ct Act § 451[a]; see Matter of Lagani v Li,
131 A.D.3d 1246, 1247-1248; Matter of Pepe v Pepe,
128 A.D.3d 831, 834). "Among the factors to be
considered in determining whether there has been a change in
circumstances warranting an upward modification of support
are 'the increased needs of the children, the increased
cost of living insofar as it results in greater expenses for
the children, a loss of income or assets by a parent or a
substantial improvement in the financial condition of a
parent, and the current and prior lifestyles of the
children'" (McMahon v McMahon, 19
A.D.3d464, 464-465, quoting Shedd v Shedd, 277
A.D.2d 917, 918; see Matter of Baumgardner v
Baumgardner, 126 A.D.3d 895, 897). "'[T]he
[custodial parent's] financial status is also a proper
consideration'" (Matter of Green v Silver,
96 A.D.3d 843, 845, quoting Matter of Boden v Boden,
42 N.Y.2d 210, 212).
the mother presented uncontroverted testimony and other
evidence as to specific expenses related to the care of the
children, including specific increased expenses related to
the children's extracurricular activities. In addition,
she submitted her 2015 income tax return, which, together
with her testimony and financial disclosure affidavit,
revealed that even with the father's $200 child support
contribution, the mother was financially unable to meet the
needs of the children. The father failed to provide complete
and credible financial information. Under these
circumstances, the Support Magistrate properly concluded that
there was a substantial change in circumstances which
warranted a modification of the existing order of support
(see Matter of Anderson v Anderson, 92 A.D.3d 779,
780; Matter of Ryan v Levine, 80 A.D.3d 767, 767).
to the father's contention, he was not deprived of the
right to counsel. The father did not have a right to assigned
counsel in this support proceeding (see Family Ct
Act § 262[a]; Matter of Nicotra v Nicotra, 139
A.D.3d 1070; Matter of Lada v Lada, 231 A.D.2d 521),
and the record establishes that the father was advised of his
right to retain counsel but instead elected to represent
himself with regard to this proceeding (see Family Ct Act
§ 433[a]; Matter of Lada v Lada, 231 A.D.2d
521). Moreover, since the father chose to represent himself
at the hearing, the resultant award will not be set aside due
to the alleged inadequacy of that self-representation (see
Matter of Adams-Eppes v Fulton, 195 A.D.2d 455;
Linder v Linder, 122 A.D.2d 27).
father's remaining contentions are without merit.
J.P., LASALLE, CONNOLLY and ...