NOTICE: YOUR WILLFUL FAILURE TO OBEY THIS ORDER MAY RESULT IN INCARCERATION FOR CRIMINAL NON-SUPPORT OR CONTEMPT. YOUR FAILURE TO OBEY THIS ORDER MAY RESULT IN SUSPENSION OF YOUR DRIVER’S LICENSE, STATE-ISSUED PROFESSIONAL TRADE LICENSES AND PERMITS AND IMPOSITION OF REAL OR PERSONAL PROPERTY LIENS. DECISION AND ORDER On June 25, 2019, J.C. (“Petitioner”) filed timely Objections to Support Magistrate Kevin Mahoney’s June 19, 2019 Order dismissing the petition for a downward modification of the child support obligation. E. C. (“Respondent”) did not file a Rebuttal. After a review of the record and audio-taped proceedings, Petitioner’s Objections are denied. The parties have two children from the marriage, J.C. Jr. born on XXXXXX XX, 2004 and C.C. born on XXXXXX XX, 2007. The Petitioner and the Respondent’s marriage was dissolved pursuant to a Judgment of Divorce (“JOD”) entered in New York County on July 31, 2012.1 The Petitioner is required to pay $1,700.00 in basic child support and 54 percent as his pro rata share of all child care, educational expenses and unreimbursed medical expenses for the subject children. The parties also agreed the Petitioner is required to pay $363.00 a month towards the arrears of $45,000. Petitioner filed a petition on May 20, 2019 seeking to modify the January 11, 2018 consent Order of Support. Petitioner argued that since the Order of Support was entered he suffered a substantial change in circumstances in that Petitioner lost his job in finance, is currently residing in a drug treatment facility and since April 2019 is working at a minimum wage job. Both parties and the Respondent’s attorney appeared on June 19, 2019. The Petitioner represented himself and testified that he lost his high paying job in finance because of his alcohol and drug addiction. Petitioner testified that he is now living in a residential drug treatment and is working at a minimum wage job. The Petitioner testified that because he has a curfew at the residential treatment facility, he is unable to engage in the after-work socializing required of his prior finance job. The Petitioner testified his earning ability was further curtailed because he sustained broken hip and is awaiting surgery to repair his hip. Petitioner testified his broken hip was discovered during a medical examination for the intake process at his residential drug treatment program. The Petitioner admitted that he did not provide the Support Collection Unit (“SCU”) with his current employer’s information so that child support payments could be collected. The Respondent testified that she received only one child support payment of $125.00 which was half of the Petitioner’s unemployment payment at the time. Support Magistrate Mahoney dismissed the petition and found the Petitioner failed to provide any proof showing his efforts to return to the level of income that provides the basis for the instant order of support. Support Magistrate Mahoney also found that the medical documentation the Petitioner submitted to support his claims that his broken hip curtailed his earning ability were outdated.2 Petitioner filed Objections to Support Magistrate Mahoney’s June 19, 2019 Order of Dismissal and argues that Support Magistrate Mahoney failed to consider Petitioner’s admission into a residential drug treatment facility and his broken hip as a substantial change in circumstances to support a downward modification of the Child Support Order. Attached to his written Objections, the Respondent provided new information about his progress in drug treatment and his physical health. A Family Court Judge’s review of a Support Magistrate’s Order is essentially equivalent to an appellate review of such an Order. Green v. Wron, 151 Misc. 2d 9, 571 N.Y.S. 2d 193 (Fam. Ct., N.Y. Cty. 1991). The scope of that review is confined to whether the Support Magistrate, as the trier of fact, has made the necessary Findings of Fact and Order and whether, upon review of the record, the Findings of Fact present a reasonable basis for that Order. The Support Magistrate is granted broad discretion in evaluating the evidence and, therefore, his or her findings are entitled to great deference. Creem v. Creem, 121 A.D. 2d 676, 504 N.Y.S.2d 44 (2nd Dept. 1986). The determination of the Support Magistrate should not be disturbed upon objection unless no fair interpretation of the evidence can support the findings. Stone v. Stone, 236 A.D. 2d 615, 652 N.Y.S. 2d 824 (2nd Dept. 1997); Reed v. Reed, 240 A.D. 2d 951, 659 N.Y.S 2d 334 (3rd Dept. 1997). To establish an entitlement to a modification of a child support obligation, the movant has the burden of establishing a substantial, unanticipated, and unreasonable change in circumstances resulting in a concomitant need, or that the agreement was not fair and equitable when entered into. (see Matter of Gravlin v. Ruppert, 98 N.Y. 2d 1, 5, 770 N.E. 2d 561, 743 N.Y.S. 2d 773 [2002]; Zaratzian v. Abadir, 128 A.D. 3d 953, 12 N.Y.S. 3d 104 [2015]; Matter of Suchan v. Eagar, 121 A.D. 3d 910, 993 N.Y.S. 2d 519 [2014]; Nelson v. Nelson, 75 A.D. 3d 593, 593-594, 904 N.Y.S. 2d 663 [2010]). Additionally, Family Court has the discretion to impute income based upon a parent’s employment experience and earning capacity and a parent’s failure to seek employment that is commensurate with his or her education, skills or experience. Anderson v. Harris, 68 A.D. 3d 472 (1st Dept. 2009). Here, the Court finds no basis to disturb the June 19, 2019 findings of Support Magistrate Mahoney. The credibility assessment of the Support Magistrate should be afforded great weight as he was in the best position to assess the credibility of the witnesses and the evidence proffered. Drago v. Drago, 138 A.D.2d 704 (2d. Dep’t 1988). The parties agreed Petitioner would pay $1,700.00 per month in child support based on his prior earnings. The Petitioner did not introduce any evidence that the agreement was inequitable or unfair at the time they entered into it. Although the Petitioner’s evidence that he suffered a broken hip and that until November 2019 he will be residing in a residential drug treatment facility that imposes a curfew on him, may collectively rise to the level of a substantial, unanticipated and unreasonable change in circumstances to support a downward modification of the Order of Support but the evidence does not show that the Petitioner’s ability to earn is limited as a result. The Petitioner did not present his last filed tax return or complete the required Financial Disclosure Affidavit. Additionally, the Petitioner failed to produce any evidence of his efforts to return to the level of income which was the basis for the instant Order of Support. Support Magistrate Mahoney properly imputed the higher income to the Petitioner and dismissed the petition. Finally, in his Objections the Respondent attached a “new information packet” that contains an updated medical report, a letter from J-CAP, and a pay stub from July 19, 2019 to support his Objections to Support Magistrate Mahoney’s June 19, 2019 Order of Dismissal. Following Green v. Wron, 151 Misc. 2d 9, 571 N.Y.S. 2d 193 (Fam. Ct., N.Y. Cty. 1991) it is improper for the Court to consider evidence introduced for the first time through Objections. Although this information may be helpful in a subsequent petition to modify the Order of Support, the Respondent’s new information will not be considered for the purposes of this decision. The Order of Dismissal of Magistrate Kevin Mahoney is affirmed. Notify the Petitioner and the Respondent. Notify Support Magistrate Kevin Mahoney. Dated: August 30, 2019 New York, New York PURSUANT TO SECTION 1113 OF THE FAMILY COURT ACT, AN APPEAL FROM THIS ORDER MUST BE TAKEN WITHIN 30 DAYS OF RECEIPT OF THE ORDER BY APPELLANT IN COURT, 35 DAYS FROM THE DATE OF MAILING OF THE ORDER TO APPELLANT BY THE CLERK OF COURT, OR 30 DAYS AFTER SERVICE BY A PARTY OR THE ATTORNEY FOR THE CHILD UPON THE APPELLANT, WHICHEVER IS EARLIEST
