Furman v. Barnes

293 A.D.2d 781, 739 N.Y.S.2d 655, 2002 N.Y. App. Div. LEXIS 3415

Opinion

Lahtinen, J.

Appeal from an order of the Family Court of Cortland County (Ames, J.), entered October 3, 2000, which dismissed petitioner’s application, in a proceeding pursuant to Family Court Act article 4, to modify a prior order of child support.

In January 1998, petitioner, the biological father of two children born in July 1988 and October 1989, was ordered by Family Court to pay child support. In June 2000, petitioner filed a petition seeking a downward modification of his child support obligation due to his loss of employment resulting from his arrest and incarceration.

Footnotes

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* The Hearing Examiner, sua sponte, dismissed the petition without a hearing. Family Court denied petitioner’s pro se objections to the Hearing Examiner’s decision, finding that New York courts “presently do not consider long term incarceration to be a requisite change in circumstances such that would entitle a parent to modification of a support order.” Family Court concluded that “there was no abuse of discretion on the part of the Hearing Examiner in denying the requested modification.” Petitioner appeals.

Family Court’s summary dismissal of petitioner’s application for a downward modification of his child support obligation was not an abuse of discretion. Dismissal was entirely proper since petitioner’s incarceration and loss of employment was occasioned solely by his wrongful conduct and resultant felony conviction (see, Matter of Knights v Knights, 71 NY2d 865, 867; Frasca v Frasca, 213 AD2d 589, 590; Matter of Ontario County Dept. of Social Servs. [Powers] v Jackson, 212 AD2d 1056).

Finally, we have examined and reject the arguments raised by petitioner in his pro se brief.

Peters, J.P., Carpinello, Mugglin and Rose, JJ., concur. Ordered that the order is affirmed, without costs.

Petitioner was sentenced on a criminal charge to a term of imprisonment of 41/a to 9 years.