Preischel v. Preischel

193 A.D.2d 1118, 598 N.Y.S.2d 642, 1993 N.Y. App. Div. LEXIS 5768

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 28, 1993
• Status: Published

Opinion

Order unanimously reversed on the law without costs, objections denied and order of Hearing Examiner reinstated. Memorandum: Family Court erred in dismissing petitioner’s application for a downward modification in child support. Where the applicant demonstrates that there has been an unanticipated and unreasonable change in circumstances, the court may modify the support obligations of a written separation agreement (Domestic Relations Law § 236 [B] [9] [b]; see, Matter of Boden v Boden, 42 NY2d 210, 213; Schelter v Schelter, 159 AD2d 995; Epel v Epel, 139 AD2d 488).

The record establishes that petitioner, through no fault of his own, lost his job when his employer encountered financial problems and closed its plant. It further establishes that petitioner made diligent efforts to find a new job, including sending out over 200 resumés, answering numerous want ads, and registering at approximately 15 employment agencies. Petitioner was unemployed for a period of approximately 7 Vi months, but nevertheless paid respondent $60 per week in child support out of his unemployment benefits. When he found a job, he filed an amended petition and notified the court.

We conclude that the Hearing Examiner’s determination that petitioner demonstrated an unanticipated change in circumstances is fully supported by the record. Thus, Family Court erred in granting respondent’s objections to that determination and finding that petitioner failed to present a prima facie case of changed circumstances to warrant a reduction of support (see, Dowd v Dowd, 178 AD2d 330). (Appeal from Order of Erie County Family Court, Townsend, J.—Support.) Present—Callahan, J. P., Green, Lawton, Doerr and Boomer, JJ.