WHEN REDUCTION IN CHILD SUPPORT IS NOT WARRANTED

G.J.G. v. H.C.F., Date filed: 2023-03-24, Court: Family Court, Nassau, Judge: Support Magistrate Sondra Mendelson-Toscano, Case Number: F-06630-12/23E:

"A petitioner seeking to modify their child support obligation has the burden of proving that a substantial change in circumstances exists. See N.Y. FAM. CT. ACT §451(3)(a) (McKinney’s 2023); see also O’Donoghue v. O’Donoghue, 2023 N.Y. App. Div. LEXIS 1553, at *2 (2d Dep’t, Mar. 22, 2023); Cywiak v. Packman, 2023 N.Y. App. Div. LEXIS 1064, at *2 (2d Dep’t, Mar. 1, 2023); Lopez v. Campoverde, 201 A.D.3d 719, 720 (2d Dep’t 2022); Castelli v. Maiuri-Castelli, 198 A.D.3d 752, 753 (2d Dep’t 2021); Funaro v. Kudrick, 128 A.D.3d 695, 696 (2d Dep’t 2015); Radday v. McLoughlin, 106 A.D.3d 1015, 1015-16 (2d Dep’t 2013); Kasun v. Peluo, 82 A.D.3d 769, 771 (2d Dep’t 2011); Ish-Shalom v. Wittman, 81 A.D.3d 648, 648 (2d Dep’t 2011); Aranova v. Aranova, 77 A.D.3d 740, 40 (2d Dep’t 2010). In making such determination, a court must consider, inter alia, the following factors: (1) the children’s increased needs; (2) any cost of living increase if it creates greater expenses for the children, (3) a parent’s loss of income or assets; (4) a substantial improvement in a parent’s financial situation; and, (5) the children’s current and prior lifestyles. See Cywiak, 2023 N.Y. App. Div. LEXIS 1064, at *2-*3; see also Castelli, 198 A.D.3d at 753; Bishop v. Bishop, 170 A.D.3d 642, 644 (2d Dep’t 2019); Baumgardner v. Baumgardner, 126 A.D.3d 895, 896-97 (2d Dep’t 2015); see also Fantel v. Stamatatos, 59 A.D.3d 717, 717-18 (2d Dep’t 2009). The relevant time period for the purposes of deciding a modification application is the time frame between when the order sought to be modified was issued and the filing of the modification petition. See O’Donoghue, 2023 N.Y. App. Div. LEXIS 1553, at *2-*3; see also Cywiak, 2023 N.Y. App. Div. LEXIS 1064, at *3; Tomassi v. Suffolk Cty. Dep’t of Soc. Servs., 144 A.D.3d 930, 931 (2d Dep’t 2016); Saraguard v. Saraguard, 125 A.D.3d 982, 983 (2d Dep’t 2015); Kasun v. Peluso, 82 A.D.3d 769, 771 (2d Dep’t 2011).

The Court finds that Mr. G has failed to meet his burden of proof. See Cywiak, 2023 N.Y. App. Div. LEXIS 1064, at *3 (affirmed; support magistrate properly dismissed modification petition where father failed to establish reduction in income since last order and value of his assets increased since that time). By Mr. G’s own admission, for the last twelve years, he has been without a stable job or steady housing. The parties’ last modification was entered in 2018. Mr. G’s 2018 petition alleged a decrease in income due to a lost job. Magistrate Satterthwaite’s notes reflect that Ms. F agreed to appreciably reduce Mr. G’s child support obligation because Mr. G was residing in a shelter and had just finished drug rehabilitation. The facts contained within Magistrate Satterthwaite’s notes were testified to at the instant trial. Given that Mr. G was unemployed in 2018 when the parties’ last order was modified, the proof showed that Mr. G’s income has actually increased since he is now gainfully employed earning $10.00 an hour. Taking into consideration the totality of the evidence presented, there exists no substantial change in circumstances supporting a downward modification.

Assuming arguendo that the Court found that Mr. G’s salary decreased, a party’s own decisions and actions do not justify a reduction in his or her child support obligation. See e.g. Roberts v. Roberts, 176 A.D.3d. 1226, 1227 (2d Dep’t 2019) (affirming denial of downward modification; finding father’s alleged decrease in income was result of “self-created hardship”); Lorenzo v. Lorenzo, 146 A.D.3d 959, 960 (2d Dep’t 2017) (upholding support magistrate’s determination; father failed to establish loss of employment was through no fault of his own); Austein-Gillman v. Gillman, 292 A.D.2d 524, 524 (2d Dep’t 2002) (affirmed: father’s “financial deterioration was caused by his own actions and decisions); Grettler v. Grettler, 12 A.D.3d 602, 603 (2d Dep’t 2004) (self-imposed hardship due to arrest and resulting employment termination insufficient for downward modification); Doyle v. Doyle, 230 A.D.2d 795, 796 (2d Dep’t 1996) (child support reduction unwarranted where father decided to alter circumstances by investing assets in new business venture). Thus, Mr. G’s decision to leave New York and relocate to Pennsylvania, because of New York’s alleged bad influence on him and his mother’s alleged ailment,1 fails to sustain his downward modification application.2

Footnotes

1. See Maria T. v. Kwame A., 35 A.D.3d 239, 240 (1st Dep't 2006) (choice to forego employment and care for sick parent inappropriate where child support has been ordered); see also Griffin v. Griffin, 294 A.D.2d 188, 188 (1st Dep't 2002) (decisions to attend school or care for family member rather than work are impermissible for child support purposes)

2. This Court may not based its decision on sympathy, but rather must base its decision on the facts as applied to the law. See e.g. Circus Disco, Ltd. v. N.Y.S. Liquor Authority, 51 N.Y.2d 24, 38 (1980) (judges must base their decisions upon laws and not sympathy); People v. Leggett, 76 A.D.3d 860, 861-62 (1st Dep't 2010) (judges must ensure fair and impartial trials); Mertsaris v. 73rd Corp., 105 A.D.2d 67, 92 (2d Dep't 1984) ("[J]udges must examine a case with their heads and not their hearts."); People v. Rogers, 13 Abb. Pr. 370, 381 (N.Y. Sup. Ct., Second Dist., Nov. 1872) ("A judge who from sympathy for the accused or for any other cause should do so, would inflict an unjustifiable injury upon the public interests.")."