DECISION Objections to the order, dated December 3, 2018 dismissing Petitioner’s petition for modification of Petitioner’s child support and maintenance obligations, and to the order dated December 4, 2018 (and stated to be December 3, 2018 on page 1 of the order) directing the entry of a money judgment against Christopher Harris for child support arrears, and and to the order dated December 4, 2018 (and stated to be December 3, 2018 on page 1 of the order) directing the entry of a money judgment against Christopher Harris for spousal support arrears, all orders of the Honorable Aletha Fields, Support Magistrate, having been filed with this Court by Christopher Harris, and rebuttal thereo having been filed by Lorene Harris, and the matter having now come before this Court, the following disposition is made:Pursuant to Family Court Act §439 (e), in this Decision, the Court makes its own findings of fact without holding a new hearing, the result of which is that this Court agrees that the Support Magistrate’s Order dismissing Petitioner’s petition was properly made. Thus, the Objections are denied.The Support Magistrate’s order of dismissal stands as do the orders directing entry of money judgments.In making this decision, the Court relied on the record established at the hearing before the Support Magistrate and disregarded all factual allegations and/or exhibits that were not in evidence before the Support Magistrate (cf. Matter of Renner v. Costigan, 125 AD3d 664, 4 NYS3d 53 [2d Dept 2015]). The Court reviewed the Objections dated December 27, 2018 and the Rebuttal dated January 4, 2019.Christopher Harris (“Objector” or “Petitioner”) filed a petition seeking downward modification of both his child support payment obligations and his maintenance/spousal support obligations by way of modifying the parties’ judgment of divorce which was entered in the Supreme Court, Suffolk County on May 23, 2018.In turn, Lorene Harris (“Rebutter” or “Respondent”) filed a petition seeking enforcement of a prior order of child support and spousal support-the parties’ judgment of divorce.After a hearing held on November 30, 2018, the Support Magistrate dismissed Objector’s petition and granted Rebutter’s petition. The Support Magistrate issued three orders in connection with the findings of fact. The three orders (1) dismissed Objector’s petition; (2) directed entry of a money judgment against Objector for child support arrears; and (3) directed entry of a money judgment against Objector for spousal support arrears.Objector timely filed objections, and Rebutter timely filed a rebuttal.A. Downward Modification of Child SupportObjector asserts that the Support Magistrate erred by applying a change in circumstances test consistent with Boden v. Boden (42 NY2d 210, 397 NYS2d 701 [1977]). That standard, Objector says, “does not apply to stipulation of settlements incorporated into a Judgment of Divorce after the 2010 legislative Amendments (sic)” (Objections at 8).In addition, the Objector asserts that the Support Magistrate “[f]ailed to discuss or consider FCA §451 (3) (b) which provides, in part, for a change in child support if “there has been a change in either party’s gross income by fifteen percent or more since the order was entered, last modified, or adjusted.”In response, Lorene Harris (“Rebutter”) contends that FCA §451 (3) grounds for modification-which the parties agree are operative here-do not permit relief to Objector because the Objector’s loss of income was either voluntary or if involuntary, not followed by diligent efforts to secure other employment commensurate with his education, ability and experience (Matter of Rizzo v. Spear, 152 AD3d 774, 59 NYS3d 126 (2d Dept 2017) and that any other result would allow a child support paying parent to evade the parent’s obligation by, for example, leaving lucrative employment “to go sell ice cream cones” (Rebuttal at 2).1. Change in CircumstancesFamily Court Act §451 (3) (a) provides, “[T]he court may modify an order of child support, including an order incorporating without merging an agreement or stipulation of the parties, upon a showing of a substantial change in circumstances.” This is, in essence, the Boden v. Boden (42 NY2d 210, 397 NYS2d 701 [1977]) standard, and the statute explicitly incorporates the very situation this case presents, namely an order based on a stipulation of settlement that was incorporated but not merged into the judgment of divorce.Therefore, the Support Magistrate’s correctly undertook a change in circumstances analysis guided by Merl v. Merl (67 NY2d 359, 502 NYS2d 712 [1986]) and Boden (supra).The Support Magistrate’s findings of fact have support in the record and should not be disturbed, and, along with the findings of fact set forth below, show that the Order of dismissal was properly made (Matter of Karagiannis v. Karagiannis, 73 AD3d 1064, 901 NYS2d 669 [2d Dept 2010].2. Change in Income Under Family Court Act §451 (3) (b) (ii)Family Court Act §451 (3) (b) (ii) permits the Family Court to modify an order of support (notably, the statutory language does not specifically include an order based on a stipulation of settlement incorporated but not merged into the order) when “there has been a change in either party’s gross income by fifteen percent or more since the order was last entered, last modified or adjusted.”In Matter of Rizzo, the Second Department held:The Support Magistrate should have considered whether the father was entitled to a downward modification of his child support obligation pursuant to Family Court Act §451 (3) (b) (ii). Nevertheless, the Support Magistrate properly placed the burden on the father to provide evidence in support of his petition, including specific evidence that his loss of income was involuntary and that he made a diligent, good faith effort to secure other employment commensurate with his education, ability, and experience and he failed to satisfy this burden.(Matter of Rizzo v. Spear, 152 AD3d 774, 776, 59NYS3d 126 [2d Dept2017] [citations omitted]). The same analysis applies here.This Court finds the following facts: (i) the “order was entered” on May 23, 2017, and it incorporated but did not merge the Stipulation of Settlement; (ii) when the order was entered, the Father/Objector was working for New York Life with a gross income (Family Court Act §413 [1] [b] [5] [i], [iii]) of $90,379 per year; (iii) the Objector voluntarily left that employment in 2018 based on having been “recruited” by AXA Financial; (iv) after leaving New York Life, the Objector did not make efforts to return to the computer technology field where he had, two years earlier, earned over $150,000 per year, more than three times his New York Life earnings; (v) the Father’s 2018 gross income is not able to be determined from the trial evidence because there was no evidence of what, if any, portion of that 2018 gross income would or did include pension and annuity income (Family Court Act §413 [1] [b] [5] [iii]); (vi) in addition, the Objector’s 2018 gross income is not able to be deternined from the trial evidence because no explanation was provided to explain the discrepancy between 2018 year-to-date gross earnings of $4,328.43 as of July 27, 2018 and 2018 year-to-date gross earnings of $3,635.94. No explanation of how the Objector’s gross earnings declined by approximately $700 over a three and one-half month period was furnished.Based on those facts, the Objector did not sustain his burden of proof to show that Objector’s 2018 gross income was more than 15 percent different from his 2017 gross income. Moreover, even if such a difference existed, the Objector voluntarily reduced his gross income by leaving New York Life where he earned just under $47,000 per year to join AXA Advisors; and, the Objector still a variable annuity, a portion of which belongs to the Rebutter from which no income is being received by the Objector even though the Stipulation of Settlement does not forbid the Objector from taking distributions from it, as opposed to the prohibition on Objector taking loans against it pending certain future events.Thus, this Court finds that the Support Magistrate’s Order was properly made, and denies this portion of the objections.B. Downward Modification of Spousal SupportThe Objector asserts that the Support Magistrate’s finding of fact are silent as to the application for a downward modification of maintenance, and “[T]he Support Magistrate fails to explain her decision to dismiss the petition or explain her analysis, if any of the issue” (Objections at 13). The Objector further asserts that he proved extreme hardship that justifies a reduction in maintenance (Kaplan v. Kaplan, 130 AD3d 576, 13 NYS3d 184 [2d Dept 2015]).The Rebutter replies that the evidence at the hearing make the conclusion of no extreme hardship all but inescapable.In Kaplan, the Second Department noted that the moving party had shown that his employment was lost involuntarily and that the moving party had made diligent, good faith efforts to secure substitute employment based upon the moving party’s education and experience.Here, the findings of fact at the Support Magistrate level, and the findings of fact this Court has made above in respect of the child support reduction application show that the loss of employment from New York Life to AXA was voluntary when he was “recruited” by AXA. When apparently dissatisfied with the earnings at New York Life, and while with AXA, the Objector made no efforts (and did not renew his post-layoff and pre-stipulation efforts) to secure more remunerative employment based on his over two decades of experience in a field in which he had been earning more than $150,000 per year.Thus, this Court finds that the Support Magistrate’s Order was properly made, and denies this portion of the objections as well.Central Islip, NYDated: January 22, 2019TO: Petitioner/RespondentCounsel of RecordSCUDated: January 22, 2019Decision was mailed to parties/counsel on 1/31/19, 2019 by: kg Part 2.
