Conway v. Conway

79 A.D.3d 965, 912 N.Y.S.2d 700

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 21, 2010
• Status: Published

Opinion

In a matrimonial action in which the parties were divorced by judgment entered [March 25, 2008, the defendant appeals from an order of the Supreme Court, Nassau County (Zimmerman, J.), entered March 17, 2009, which denied, without a hearing, his motion for a downward modification of his child support obligation.

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

The defendant moved for a downward modification of his child support obligation, contending that he was unemployed and that there had been a substantial change in his financial circumstances since the time of the judgment of divorce, when the Supreme Court had determined that he was earning $38,000 per year. Where child support obligations are set by the court in a divorce action and not by stipulation, a court may modify a prior order or judgment as to child support “upon a showing of ... a substantial change in circumstance . . . including financial hardship” (Domestic Relations Law § 236 [B] [9] [b] [1]; see Pollack v Pollack, 3 AD3d 482, 483 [2004]). “The party seeking modification of a support order has the burden of establishing the existence of a substantial change in circumstances warranting the modification” (Matter of Perrego v Perrego, 63 AD3d 1072, 1073 [2009]; see Matter of Nieves-Ford v Gordon, 47 AD3d 936 [2008]). “[A] hearing is necessary on the issue of changed circumstances where the parties’ affidavits disclose the existence of genuine questions of fact” (Schnoor v Schnoor, 189 AD2d 809, 810 [1993]; see generally Wyser-Pratte v Wyser-Pratte, 66 NY2d 715, 716-717 [1985]).

“A parent’s loss of employment may constitute a change of circumstances warranting a downward modification where he or she has diligently sought re-employment” (Reynolds v Reynolds, 300 AD2d 645, 646 [2002]; see Matter of Ketcham v Crawford, 1 AD3d 359, 360-361 [2003]; Matter of Meyer v Meyer, 205 AD2d 784 [1994]). Here, the defendant failed to make a prima facie showing that he was diligently seeking employment. Furthermore, although he asserted that he was awaiting a decision on an application for Social Security disability benefits, he failed to submit any evidence demonstrating that he was currently suffering from a disability, or that his inability to obtain employment was due to a disability (cf. Opperisano v Opperisano, 35 AD3d 686 [2006]; Stedfelt v Stedfelt, 258 AD2d 642 [1999]). Accordingly, the Supreme Court providently exercised its discretion in denying the defendant’s motion for a downward modification of his child support obligation without a hearing (see generally Wyser-Pratte v Wyser-Pratte, 66 NY2d at 716-717; Schnoor v Schnoor, 189 AD2d at 810). Covello, J.P., Angiolillo, Dickerson and Helen, JJ., concur.