ADDITIONAL INDEX NUMBERF-18862-17/18EDECISION ON OBJECTIONS Objections to the order of the Family Court, Suffolk County (D. Jorif-Mangane, S.M.), entered December 12, 2018. The order granted certain relief to the Petitioner and denied other relief Petitioner sought in his two petitions, one filed on August 27, 2018 (the “D” supplement) and the other filed on September 18, 2018 (the “E” supplement). The order’s caption covers both supplements although the language of the order mentions only the D supplement. The findings of fact refer to both supplements, so this Court concludes that any omission of specific reference in the language of the order to the E supplement is immaterial. The E supplement is in the caption. The objections and the order, thus, cover both supplements.Petitioner filed objections on January 11, 2019, and proper proof of service accompanied the filing. Also, a transcript of the November 16, 2018 proceeding before the Support Magistrate accompanied the objections. Page 50 of the transcript is the certification of the court transcriber and court reporter, and the Court considered the transcript in making this decision.1Respondent filed rebuttal on January 14, 2019, and proper proof of service did not accompany the filing. The rebuttal was not considered in the rulings on the Petitioner’s objections.HistoryThe parties were divorced on March 7, 2006 in Nassau County Supreme Court (E. Jackson Stack, JSC). The judgment of divorce incorporated but did not merge the parties’ stipulation of settlement dated the 22nd day of November 2005. Since then, the Petitioner’s basic child support obligation has not been changed.Petitioner asserts nine specific errors, each of which is discussed below. Based upon this decision, the objections are denied in their entirety.CSEB Credit — Objection 1The order provides, in part, “IT IS FURTHER ORDERED that Child Support Enforcement Bureau shall credit Michael J Dimaio the sum of $1,863.10 for his 31 percent share of the child Sophia’s fall 2018 room and board expense.” Petitioner requests that “Court should resettle order and reduce child support…” (Objections at 1).Family Court Act §439 (e) establishes and limits this Court’s authority on objection review. This Court is not empowered to modify the Support Magistrate’s order based on the unsworn factual allegations set forth in the objections. Whether the proper procedural avenue for the Petitioner to pursue is a motion before the Support Magistrate to modify the Support Magistrate’s prior order (see, Family Court Act §165; CPLR 2221) or a new petition to modify a prior order or an article 78 proceeding or something else is a decision for the Petitioner and any lawyer whom the Petitioner engages.Because this Court lacks power to consider the unsworn factual allegations in the objections and to modify the Support Magistrate’s order as Petitioner requests, this specific written objection is denied.Respondent’s Failure to Notify the Petitioner of Life Insurance Expenses — Objection 2The order provides, in part, “IT IS FURTHER ORDERED that Michael J Dimaio’s application to modify his life insurance obligation is denied with prejudice for failure to state a cause of action.” Petitioner objects that the “court has found Mr. Dimaio liable for insurance when Mrs. Dimeo has not provided any proof that she send (sic) a demand to cure the default, as required by the Stipulation of Settlement at page 35″ (Objections at 2).Family Court Act §439 (e) allows this Court to handle “specific written objections” to the actual order a support magistrate issues.The Petitioner’s reading of the Support Magistrate’s order is flawed. The order denies the Petitioner any relief from his obligation, set forth in the stipulation of settlement, to provide a life insurance policy. Procedurally, neither of the two petitions that the order resolves include any effort by Respondent to enforce any obligation of the Petitioner and make Petitioner newly or more enforceably liable. Thus, the Petitioner is objecting to something not before the Support Magistrate and, therefore, not before this Court.This specific written objection is denied.Respondent’s Failure to Provide Receipts In Respect of Child Care Expenses — Objection 3Although the Support Magistrate’s order continues the prior order, it does not impose new liability on Petitioner for any child care expenses. Therefore, for the same reasons that objection 2 was denied, this specific written objection is denied.Reliance on False Evidence — Objection 4The Petitioner objects to consideration of what the objections characterize as “false information” about Petitioner’s employment or employment history(Objections at 4).“Family Court Act §439 (e) provides that an aggrieved party’s specific written objections to the final order of support of the Support Magistrate must be submitted within 35 days after the mailing of the order to such party” (Matter of Sannuto v. Sannuto, 21 AD3d 901, 901, 800 NYS2d 601, 602 [2d Dept 2005]). Because the CPLR applies to Family Court matters of procedure except where contrary Family Court Act language appears (Family Court Act §165 [a]), CPLR 5511 is binding or instructive on the issue of what is an “aggrieved party.”The findings of fact indicate that the imputation of income to the Petitioner in the amount of $56,636.52 was based on two factors-(1) Petitioner’s statement of Petitioner’s household expenses of $45,554.28, plus (2) Petitioner’s annual child support obligation of $11,082.24 which was not in arrears. The Support Magistrate’s addition is arithmetically correct. Thus, any information about restaurant employment was not a relevant factor in the Support Magistrate’s order which precludes Petitioner from being aggrieved by any alleged error.This specific written objection is denied.Change in Circumstances — Objections 5 & 6The Petitioner objects that the Support Magistrate failed to give proper weight to the impact the death of Petitioner’s daughter created.In sum, Petitioner objects because the July 2010 death of Petitioner’s daughter (who is not a child covered by this proceeding) led Petitioner to become the caretaker of another child-Petitioner’s granddaughter-and to experience a corresponding reduction in his ability to work (Minutes of Proceeding, 33:11-20). The Petitioner asserts that the death of that daughter eight years prior to Petitioner filing these petitions to modify his child support obligation along with the responsibility for that daughter’s daughter is a change in circumstances warranting a downward modification.Because the order sought to be modified is the 2006 judgment of divorce, which obviously predates the effectiveness of the 2010 amendments to the Family Court Act (L 2010, ch 182, §13), Petitioner must show “a substantial, unanticipated and unreasonable change in circumstances resulting in concomitant need” (Matter of Tarpey v. Tarpey, 163 AD3d 687, 688, 81 NYS3d 426, 427 [2d Dept 2018] quoting Kaplan v. Kaplan, 130 AD3d 576, 578, 13 NYS3d 184, 187 [2d Dept 2015]; Matter of Corbisiero v. Corbisiero, 112 AD3d 625, 975 NYS2d 911 [2d Dept 2013]).“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]).Based on the foregoing law, the Petitioner bore the burden of proving that his daughter’s death caused him to lose income compared to his income at the time of the judgment of divorce (or commencement of the divorce action) that requires a child support adjustment to correct.The only apparent testimony about Petitioner’s granddaughter is that she does not now live with the Petitioner. Tragic as the death of Petitioner’s daughter must have been, whatever circumstances followed that death did not cause a “concomitant need” because the Petitioner’s income rose to $56,636.52 (see, supra, at Objection 3) from $48,000.00 as set forth in the findings of fact and no evidence exists regarding any extra expenses.Therefore, this specific written objection is denied.Life Insurance Policy Face Value — Objection 7The Petitioner objects that the Support Magistrate did not relieve Petitioner of the burden of carrying a life insurance policy that the parties’ stipulation of settlement and, thus, judgment of divorce requires Petitioner to carry (Objections at 7). Petitioner seems willing to carry insurance with a face value less than the amount the parties’ agreement requires.Assuming that the requirement to carry the life insurance policy is a matter that the Family Court could treat through the Petitioner’s petition for a downward modification of the Petitioner’s child support obligations, the Support Magistrate’s analysis in the findings of fact (at 4-5) is correct. Changing the parties’ stipulation of settlement and/or judgment of divorce in respect of life insurance would constitute an amendment under the guise of interpretation. This Court adopts the Support Magistrate’s analysis that relies principally on Ayers v. Ayers (92 AD3d 623, 932 NYS2d 572 [2d Dept 2012]). A court may not read a new term — here, an adjustment to the face value of the required life insurance policy based on the age of the children – into the parties’ agreement (Cohen-Davidson v. Cohen, 291 AD2d 474, 740 NYS2d 68 [2d Dept 2002]).Therefore, this specific written objection is denied.Respondent’s Non-Compliance With Family Court Act §424-a — Objection 8Petitioner objects because, “Financials of ‘x-wife’ were not seen” (Objections, at 8).Family Court Act §424-a requires that “A sworn statement of net worth shall be filed with the clerk of the court on a date to be fixed by the court, no later than ten days after the return date of the petition” (Family Court Act §424-a). The statute also provides that “such disclosure may not be waived by either party or by the court” (Id). Because each party files with the clerk of the court, this process is distinguishable from CPLR article 31 disclosure (Family Court Act §165; CPLR art 31), so any properly filed financial disclosure is deemed to be part of the evidentiary record (Wallace v. Whitsell, 183 Misc 2d 177, 702 NYS2d 774 [Yates County Family Court 1999]).The minutes of the proceedings indicate that the Respondent gave the Court a financial disclosure affidavit (Transcript at 7:24-8:5). In addition, although the transcript appears silent about when the Respondent’s financial disclosure affidavit was marked as an exhibit and entered into evidence, the paper copy of Respondent’s financial disclosure affidavit in the evidence envelope in the court’s paper file has a sticker on the front page marking the financial disclosure affidavit as Respondent’s Exhibit B; the electronic record contains neither of the parties’ financial disclosure affidavits, both of which appear to have been handed to the Support Magistrate during the hearing.The minutes of the proceedings show the Petitioner made no objection to not being given a copy of the Respondent’s financial disclosure affidavit. The minutes and paper record are equally clear that the document was furnished.Thus, the issue is not whether Respondent complied with the compulsory financial disclosure obligations. The issue is whether the Petitioner is an aggrieved party based on Petitioner never having seen the Respondent’s financial disclosure.The Support Magistrate identified the need for income of both parties to determine pro-rata shares of certain expenses (Transcript 7:24-25). The Support Magistrate’s order called for a 31 percent (Petitioner) 69 percent (Respondent) split of those expenses. The judgment of divorce which incorporated the stipulation of settlement called for a 42 percent (Petitioner) 58 percent (Respondent) split. This is a downward modification.At the hearing, Petitioner’s income was found to be $56,636.52 after imputation. The Respondent’s financial disclosure affidavit with attachments shows that Respondent’s annual gross income from employment is $133,450.00; after deducting 7.65 percent of that amount, Respondent’s employment income for child support purposes is $123,241.08. In addition, Respondent’s financial disclosure shows income of $700.00 per month from Respondent’s mother and another $13.00 per month from someone else. $713.00 times 12 is an additional $8,556.00, marking the Respondent’s total income for child support purposes $131,797.08.The pro-rata shares of 31 percent and 69 percent are arithmetically correct using a total parental income of $188,433.60 made up of $56,636.52 of Petitioner’s $131,797.08 of Respondent’s income.Because the Petitioner’s petitions did not seek a specific quantum of relief, and, instead, sought generally a downward modification, the reduction of the pro-rata percentage of shared expenses that Petitioner pays cannot be said to have accorded Petitioner less all the relief Petitioner sought. (Pennsylvania General Ins. Co. v. Austin Powder Co., 68 NY2d 465, 510 NYS2d 67 [1986]). Thus, Petitioner is not aggrieved by this alleged error, so this specific written objection is denied.Incomplete Testimony — Objection 9Petitioner objects that testimony about a 2 1/2 acre property that Petitioner purchased (Transcript at 27) may be incomplete. Neither the findings of fact nor the Support Magistrate’s order rely on the existence of that property or the circumstances surrounding the source of funds to buy it. Matters related to the property are immaterial, so the issue is academic.Objections may be denied when the issue is academic (Matter of Kolodny v. Perlman, 143 AD3d 818, 38 NYS3d 613 [2d Dept 2016]), and this specific written objection is denied for that reason.ConclusionBased on the foregoing, the objections are denied in their entirety; any matter not specifically addressed in this decision was reviewed and was found not to constitute a basis for any relief in favor of the Petitioner.Dated: January 29, 2019Central Islip, New YorkTO: PetitionerRespondentSCUDecision was mailed to parties/counsel on 2/6, 2019 by: kg Part 2.
