Opinion
2017–10331 Docket No. F–21933–13
11-28-2018
In the Matter of Paul PATSCOT, Jr., Appellant, v. Anna FISCO, Respondent.
Petroske Riezenman & Meyers, P.C., Hauppauge, N.Y. (Michael W. Meyers of counsel), for appellant. Tini Law, P.C., Copiague, N.Y. (Francesco P. Tini of counsel), for respondent.
Petroske Riezenman & Meyers, P.C., Hauppauge, N.Y. (Michael W. Meyers of counsel), for appellant.
Tini Law, P.C., Copiague, N.Y. (Francesco P. Tini of counsel), for respondent.
LEONARD B. AUSTIN, J.P., SHERI S. ROMAN, SANDRA L. SGROI, HECTOR D. LASALLE, JJ.
DECISION & ORDER
ORDERED that the order dated August 21, 2017, is affirmed, with costs.
A "party seeking modification of an order of child support has the burden of establishing the existence of a substantial change in circumstances warranting the modification" ( Matter of Baumgardner v. Baumgardner, 126 A.D.3d 895, 896–897, 6 N.Y.S.3d 90 ; see Matter of Rubenstein v. Rubenstein, 114 A.D.3d 798, 798, 980 N.Y.S.2d 531 ; Matter of Suyunov v. Tarashchansky, 98 A.D.3d 744, 745, 950 N.Y.S.2d 399 ). "A parent's loss of employment may constitute a substantial change in circumstances" ( Matter of Rubenstein v. Rubenstein, 114 A.D.3d at 798, 980 N.Y.S.2d 531 ; see Matter of Suyunov v. Tarashchansky, 98 A.D.3d at 745, 950 N.Y.S.2d 399 ; Matter of Ceballos v. Castillo, 85 A.D.3d 1161, 1162, 926 N.Y.S.2d 142 ). However, a parent seeking downward modification of a child support obligation based on loss of employment 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" ( Matter of Riendeau v. Riendeau, 95 A.D.3d 891, 892, 943 N.Y.S.2d 215 ; see Matter of Rubens tein v. R ubenstein , 114 A.D.3d at 798, 980 N.Y.S.2d 531 ; Ashmore v. Ashmore, 114 A.D.3d 712, 713, 981 N.Y.S.2d 427 ; Matter of Suyunov v. Tarashchansky, 98 A.D.3d at 745, 950 N.Y.S.2d 399 ; Matter of Ceballos v. Castillo, 85 A.D.3d at 1162, 926 N.Y.S.2d 142 ). "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 the witnesses" ( Matter of Rubenstein v. Rubenstein, 114 A.D.3d at 798, 980 N.Y.S.2d 531 ; see Matter of Gansky v. Gansky, 103 A.D.3d 894, 895, 962 N.Y.S.2d 255 ; Matter of Suyunov v. Tarashchansky, 98 A.D.3d at 745, 950 N.Y.S.2d 399).
Here, the record supports the Support Magistrate's determination that the father failed to show that he was unable to perform work in any capacity (see Matter of Marrale v. Marrale, 44 A.D.3d 773, 843 N.Y.S.2d 407 ). Further, the court need not rely upon a party's own account of his or her finances, but may impute income based upon, among other things, the party's past income, demonstrated future potential earnings, educational background, or money received from friends and relatives (see Gafycz v. Gafycz, 148 A.D.3d 679, 48 N.Y.S.3d 464 ; Abizadeh v. Abizadeh, 137 A.D.3d 824, 825, 26 N.Y.S.3d 788 ; Matter of Mongelluzzo v. Sondgeroth, 95 A.D.3d 1332, 944 N.Y.S.2d 908 ; Matter of Rohme v. Burns, 92 A.D.3d 946, 947, 939 N.Y.S.2d 532 ). In this case, the record supports the Support Magistrate's determination to impute income to the father.
Accordingly, we agree with the Support Magistrate's determination denying the father's petition for a downward modification of his child support obligation.
AUSTIN, J.P., ROMAN, SGROI and LASALLE, JJ., concur.