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Father Appeals Order Increasing Child Support


A New York Family Lawyer said this is a support proceeding pursuant to Family Court Act article 4 wherein the father appeals from an order of the Family Court, Nassau County dated 7 February 2008 which denied his objections to an order of the same court dated 13 December 2007 granting, after a hearing, the mother’s petition for an upward modification of his child support obligation and directing him, inter alia, to pay child support in the sum of $225 per week.

A New York Child Custody Lawyer said the court reverses on the law, with costs, the order dated 7 February 2008, sustains the father’s objections, vacates the order dated 3 December 2007 and remits to the Family Court, Nassau County for further proceedings in accordance herewith.

Previously, the father’s petition for a downward modification of his child support obligation was granted by the Family Court, which had been set in a settlement agreement that was incorporated, but not merged, into the parties’ judgment of divorce. The father’s support obligation was modified to the sum of $50 a month on the basis of the dissolution of his business which occurred through no fault of his own. The downward modification was affirmed by this Court. The mother subsequently petitioned for an upward modification of the father’s child support obligation, alleging there had been a substantial change in circumstances.

When a party seeks to modify the child support provision of a prior order or judgment, he or she must demonstrate a substantial change in circumstance. It is the burden of the moving party to establish the change in circumstance warranting the modification. In determining whether there has been a substantial change in circumstances, the change is measured by comparing the payor’s financial situation at the time of the application for a modification with that at the time of the order or judgment based on Matter of Talty v Talty, Matter of Nieves-Ford v Gordon, Matter of Heyward v Goldman and McMahon v McMahon.

A New York City Family Lawyer said there must have been an imputation of income or financial ability to the father in order for the Support Magistrate to have determined that there was a substantial change in circumstances on this record. A Support Magistrate has considerable discretion in determining whether to impute income to a parent as held in Matter of Genender v Genender. Where the Support Magistrate determines that a parent’s account of his or her finances or ability to pay is not credible, the Support Magistrate may impute a higher true or potential income as held in Matter of Maharaj-Ellis v Laroche, Matter of Kristy Helen T. v Richard F.G. However, in exercising the discretion to impute income to a party, a Support Magistrate is required to provide a clear record of the source from which the income is imputed and the reasons for such imputation based on Matter of Barnett v Ruotolo and Matter of Genender v Genender. A sufficient record is necessary as the imputation of income “will be rejected where the amount imputed was not supported by the record, or the imputation was an improvident exercise of discretion as held in the case of Matter of Ambrose v Felice. Here, the Support Magistrate did not specify the amount of income imputed to the father, did not specify the source from which such income might have been derived, and failed to give any reason for the imputation of income.

A New York City Custody Lawyer said the matter may not be remitted simply for the Support Magistrate to specify the omitted information as there were other errors made in the determination of the petition. The assertion of the father in a visitation proceeding that he was ready to resume parental responsibilities did not establish that he had the means to pay the child support ordered by the Support Magistrate. The court finds that the Support Magistrate also erred in determining that the father’s support obligation should be the sum originally provided for in the settlement agreement that was incorporated into the judgment of divorce. That agreement clearly provides that the “Child Support Guidelines” would be applied if the father was no longer employed by a certain named entity or a similar enterprise. The record shows that the father is employed on a part-time basis by his father’s business.

Accordingly, the court remits the matter to the Family Court, Nassau County, for a de novo determination of the mother’s petition for an upward modification. If the mother is able to establish that the father’s true or potential income is such that there has been a substantial change in circumstances, the father’s support obligation shall be determined by the application of the Child Support Standards Act to the combined parental income.

Nassau County Child Support Lawyers, Nassau County Family Lawyers and Stephen Bilkis & Associates should be your choice of representatives when it comes to these kinds of litigation. Our vast experience with family law and child support enhanced our knowledge and skills in handling the same. If you have questions, please feel free to call us or visit us at our place of business.

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