DECISION Timely objections to the order dated December 7, 2018 (A. Fields, S.M.) having been filed with this Court on January 10, 2019, and proper proof of service thereof having accompanied the filing, and timely rebuttal to the objections having been filed with this Court on January 17, 2019, and proper proof of service thereof having accompanied the filing, the matter comes before this Court for decision. The order dismissed Petitioner’s downward modification petition.Pursuant to Family Court Act §439 (e), the objections are denied.The Petitioner’s objection, in essence, asserts that the Support Magistrate erred in dismissing Petitioner’s claim that a substantial change in circumstances occurred when he was laid off from his position where he earned $141,000 per year and remained unemployed for over one year.The hearing record and the objections contain a copy of the parties judgment of divorce (Loguercio, AJSC) granted on May 12, 2016 which incorporates but does not merge the parties’ separation agreement made and entered into the 1st day of July 2015. The judgment of divorce sets the Petitioner’s basic child support obligation at $2,000.00 per month while, in contrast, the parties’ separation agreement establishes that the presumptively correct amount of the Petitioner’s basic child support obligation at $2,838.29 per month. The separation agreement deviates (and the judgment of divorce continues that deviation) from the presumptively correct amount of Petitioner’s basic child support obligation.Both the judgment and the agreement show the parties opted out of the provisions of Family Court Act §451 (3) (b) and did not opt out of Family Court Act §451 (3) (a).In May, 2017, the Petitioner was laid off from work where he was then earning $141,000.00.Litigation subsequent to Petitioner’s layoff led to a Family Court order on consent being entered on or about June 20, 2018 which set the Petitioner’s basic child support payment obligation at $2,000.00 per month plus an additional amount to be paid toward health insurance coverage. In that order on consent, the parties expressly consented to the adoption of their judgment of divorce as a Family Court order of support.Therefore, relief the petition sought should have been granted if, and only if, the Petitioner carried Petitioner’s burden of proof by a preponderance of the evidence that a substantial change in circumstances occurred after the relevant date for measurement of a change in circumstances.Date to Measure the Substantial Change in CircumstancesThe date for measuring the change in circumstances is not provided in Family Court Act §451 (3) (a) (compare Family Court Act §451 [3] [a] with Family Court Act §451 [3] [b] [i] ["(S)ince the order was entered, last modified or adjusted"] and Family Court Act §451 [3] [b] [ii] [same language]).Case law establishes, “A substantial change in circumstances may be measured by comparing the parties’ financial situation at the time of the application for modification with that existing at the time the order sought to be modified was issued” (Matter of Baumgardner v. Baumgardner, 126 AD3d 895, 897, 6 NYS3d 90, 92 [2d Dept 2015]).Thus, the Support Magistrate was obligated to compare the parties’ financial circumstances at June 20, 2018, the date the order on consent was entered with those circumstances as of the date the Petitioner’s new petition-which was also June 20, 2018.Analysis of Substantial Change in Circumstances in the Context of Employment Loss“[A] party seeking modification of an order of child support has the burden of establishing the existence of a substantial change in circumstances warranting the modification. A parent’s loss of employment may constitute a substantial change in circumstance….Thus, a parent seeking downward modification of a child support obligation must submit competent proof that the termination occurred through no fault of the parent and the parent had diligently sought re-employment commensurate with his or her earning capacity” (Matter of Holmes v. Holmes, 140 AD3d 140 AD3d 1066, 1067-1068, 32 NYS3d 658, 659 [2d Dept 2016] [internal quotations and citations omitted]).Based on the foregoing analysis of the law, the Petitioner bore the burden of proving that after the time on June 20, 2018 that the consent order was entered, the Petitioner involuntarily lost his employment and thereafter made diligent efforts to secure commensurate re-employment. The record contains sound and substantial evidence to show that the Petitioner did not prove these two essential elements of his claim for a downward modification, and the objections, therefore, are hereby denied.Dated: January 29, 2019Central Islip, New YorkOrder was mailed to parties/counsel on 2/6, 2019 by: kg Part 2.Pursuant to §1113 of the Family Court Act, “an appeal must be taken within 30 days of receipt of the order by appellant in court, 35 days from the mailing of the order to the appellant by the clerk of the court, or 35 days after service by a party or law guardian upon the appellant, whichever is earliest.”
