Matter of Richard K. v. Deborah K.

2017 NY Slip Op 7173, 154 A.D.3d 489, 61 N.Y.S.3d 483

Opinion

Order, Family Court, New York County (Susan K. Knipps, J.), entered on or about July 6, 2016, which denied petitioner’s objections to a Support Magistrate’s order dismissing, after a hearing, his petition for a downward modification of his child and spousal support obligations, unanimously affirmed, without costs.

The court providently exercised its discretion in determining that petitioner failed to show a substantial change in circumstances to warrant a downward modification of his child support obligation after he was convicted of a federal crime and disbarred (see Matter of Boden v Boden, 42 NY2d 210, 213 [1977]; Matter of Karagiannis v Karagiannis, 73 AD3d 1064, 1065 [2d Dept 2010]). That his income was reduced due to his incarceration was but one factor that the court, in its discretion, could consider (see Family Ct Act § 451 [3] [a]). The court also properly considered petitioner’s credibility with respect to the income shown on his tax returns and his overall financial situation.

Petitioner further failed to demonstrate the extreme hardship necessary to obtain modification of the maintenance obligations contained in the parties’ stipulation of settlement, which was incorporated but not merged into the parties’ divorce judgment (see Domestic Relations Law § 236 [B] [9] [b]; Matter of Cohen v Seletsky, 142 AD2d 111, 118-119 [2d Dept 1988]). A husband’s volitional actions which result in his unemployment, including incarceration preventing any employment, do not constitute such extreme hardship (see Fabrikant v Fabrikant, 62 AD3d 585, 586 [1st Dept 2009]).

We have considered petitioner’s remaining arguments and find them unavailing.

Concur — Tom, J.P., Renwick, Andrias, Singh and Moulton, JJ.