The following papers were read on these Objections: Respondent’s Objections to Support Magistrate Order 1 DECISION AND ORDER The respondent father has filed objections pursuant to Family Court Act §439(e) to an Order Modifying an Order of Support After Trial issued by Support Magistrate Adam E. Small and dated July 25, 2019. The petitioner mother has not filed a rebuttal to said objections. The objections are determined as follows: The parties, petitioner mother R.E.S. (“mother” or “petitioner”) and respondent father R.J.K. (“father” or “respondent”) were married in 1998 and divorced pursuant to Judgment of Divorced dated January 9, 2009 (“Judgment of Divorce”). The parties’ child support arrangement is contained in their stipulation of settlement dated September 26, 2006 (“Stipulation of Settlement”), which was incorporated, but not merged, into their Judgment of Divorce. The Stipulation of Settlement provides, in pertinent part, that upon the termination of the father’s obligation to pay the mother spousal maintenance, his child support obligation consists of a monthly payment to be recalculated on an annual basis, which would be based upon, inter alia, the father’s “‘gross income from employment’ in the preceding calendar year”. (Stipulation of Settlement dated September 26, 2006 attached as Exhibit A to father’s Petition for Downward Modification of Child Support filed June 12, 2019 ["Stipulation of Settlement"], p. 21, 3). The Stipulation of Settlement further provides that if the father “was not employed for the full preceding calendar year or if he was not employed on January 1st of the then calendar year”, the father’s child support obligation would be based on his “projected gross income from employment”. (Stipulation of Settlement, pp. 21-22, 3). The Stipulation of Settlement further provides that the father’s child The respondent father has filed objections pursuant to Family Court Act §439(e) to an Order Modifying an Order of Support After Trial issued by Support Magistrate Adam E. Small and dated July 25, 2019. The petitioner mother has not filed a rebuttal to said objections. The objections are determined as follows: The parties, petitioner mother R.E.S. (“mother” or “petitioner”) and respondent father R.J.K. (“father” or “respondent”) were married in 1998 and divorced pursuant to Judgment of Divorced dated January 9, 2009 (“Judgment of Divorce”). The parties’ child support arrangement is contained in their stipulation of settlement dated September 26, 2006 (“Stipulation of Settlement”), which was incorporated, but not merged, into their Judgment of Divorce. The Stipulation of Settlement provides, in pertinent part, that upon the termination of the father’s obligation to pay the mother spousal maintenance, his child support obligation consists of a monthly payment to be recalculated on an annual basis, which would be based upon, inter alia, the father’s “‘gross income from employment’ in the preceding calendar year”. (Stipulation of Settlement dated September 26, 2006 attached as Exhibit A to father’s Petition for Downward Modification of Child Support filed June 12, 2019 ["Stipulation of Settlement"], p. 21, 3). The Stipulation of Settlement further provides that if the father “was not employed for the full preceding calendar year or if he was not employed on January 1st of the then calendar year”, the father’s child support obligation would be based on his “projected gross income from employment”. (Stipulation of Settlement, pp. 21-22, 3). The Stipulation of Settlement further provides that the father’s child support obligation would thereafter be adjusted to account for any difference between his “projected” gross income from employment and his “actual ‘gross income from employment’”. (Stipulation of Settlement, p. 28, 10). The parties, each represented by counsel, appeared for trial before Support Magistrate Small on June 5, 2019, July 8, 2019 and July 24, 2019. The trial was conducted to resolve the parties’ five petitions which were then-pending before the Court: 1) the mother’s violation petition, filed August 6, 2018, in which she alleged that the father had violated the parties’ child support order; 2) the father’s modification petition, filed August 24, 2018, in which he sought a downward modification of his child support obligation based on his employment being terminated on April 3, 2018; 3) the father’s second downward modification petition, filed April 5, 2019; 4) the mother’s second violation petition, filed April 25, 2019; and 5) the father’s third downward modification petition, filed June 12, 2019. Following the trial, the Support Magistrate issued an Order Modifying an Order of Support After Trial, dated July 25, 2019 (“Modified Support Order”), which incorporated written Findings of Fact After Trial. Under the Modified Support Order the father’s pro-rata share of basic child support obligation with respect to the parties’ three children is $1,200.00 semi-monthly, retroactive to May 1, 2018, with payments to commence on August 1, 2019. (Modified Support Order, p. 2). The Findings of Fact After Trial state that the father is obligated for child support in this amount through April 30, 2020. (Findings of Fact, p. 6). At the outset, the father’s objections are dismissed because he filed a deficient proof of service of his objections on the mother. The proof of service which the father filed with his objections broadly states that the objections were served upon the mother and her counsel “by mail”, but it fails to specify the address or addresses used to serve those individuals. (CPLR §306 ["(a)…Proof of service shall specify the papers served, the person who was served and the…address….and set forth facts showing that the service was made by an authorized person and in an authorized manner"]). The Court is particularly concerned with this deficiency because no rebuttal papers have been filed with the Court, which may be indicative of the fact that the mother was not served. (See, Matter of Richardson v. Thompson, 144 AD3d 924, 924-925 [2d Dept. 2016] [father failed to establish proper service of objections because the mother's name and address were not included on the affidavit of service]; Matter of Hamilton v. Hamilton, 112 AD3d 715, 716 [2d Dept. 2013] [father failed to fulfill condition precedent to the filing of timely objections where the address to which the objections were mailed, as stated in his proof of service, was not the correct address for the mother and where the mother, as a result, had not been served with the objections and had not filed any rebuttal to said objections]). Filing a deficient proof of service constitutes a failure to satisfy a condition precedent to filing timely written objections, and the father’s objections are denied on this basis alone. (See, e.g., Matter of Richardson, supra, 144 AD3d at 925; Matter of Hamilton, supra, 112 AD3d at 716; Matter of Cooper v. Lathillerie, 122 AD3d 626, 627 [2d Dept. 2014]). While the father’s objections are denied due to his failure to file sufficient proof of service, the Court further notes that the father’s objections also warrant dismissal because they fail to set forth a basis to disturb the Support Magistrate’s Modified Support Order. First, the father objects to the Support Magistrate’s calculation of his income for the purposes of establishing his child support obligation for the relevant time periods. (Objections of R.J.K., filed August 23, 2019 ["Objections"], 1). However, the Court has reviewed the record in this matter, including the mechanical recording of the three trial dates before Support Magistrate Small and the documents entered into evidence, and finds that the record supports the Magistrate’s decision to impute an annual income of $155,000.00 to the father. (Findings of Fact After Trial, p. 5). “A court need not rely upon a party’s own account of his or her own finances…and the court’s determination whether to impute income to the obligor spouse ‘is given great deference on appeal’”. (Matter of Peddycoart v. MacKay, 145 AD3d 1081, 1082 [2d Dept. 2016]). In this case, the Support Magistrate conducted a meaningful hearing prior to determining the father’s child support obligation. (Matter of Mongelluzzo v. Sondgeroth, 95 AD3d 1332, 1333 [2d Dept. 2012], lv. to appeal den., 20 NY3d 854 [2012]; Matter of Nuesi v. Gago, 68 AD3d 1122, 1122 [2d Dept. 2009]). Magistrate Small was in the best position to assess the credibility of the father’s evidence regarding his income, including by observing and listening to him while he testified and evaluating the evidence presented in light of its relevance, materiality, credibility, importance and weight. Having done so, the Support Magistrate imputed income to the father based on his earning capacity and other resources available to him, and the record supports that determination. (Matter of Peddycoart, supra, 145 AD3d at 1082-1083; Matter of Bustamante v. Donawa, 119 AD3d 559, 560 [2d Dept. 2014]; Matter of Mongelluzzo, supra, 95 AD3d at 1333 ["a Support Magistrate has considerable discretion in determining whether to impute income to a parent…deference should be given to the credibility determinations of the Support Magistrate, who was in the best position to assess the credibility of the witnesses"]. Likewise, the record supports the Support Magistrate’s determination that the father failed to establish entitlement to a downward modification based on his loss of employment. It is well-settled that in order for a parent’s loss of employment to qualify as a “substantial and unanticipated change in circumstances” warranting a downward modification of child support, the obligor parent must establish not only that the termination was involuntary and “occurred through no fault of the parent“, but also that the parent “has diligently sought re-employment commensurate with his or her earning capacity”. (Matter of Lorenzo v. Lorenzo, 146 AD3d 959, 959-60 [2d Dept. 2017] [emphasis supplied]; Matter of Rubenstein v. Rubenstein, 114 AD3d 798, 799 [2d Dept. 2014]). Affording deference to the Support Magistrate’s credibility determinations, the Court finds that the record supports Magistrate Small’s determination that the father failed to establish that his employment was terminated through no fault of his own. (Findings of Fact, p. 4). The record also supports the Support Magistrate’s determination that the father failed to establish that he made diligent efforts to secure re-employment commensurate with his earning capacity. (Findings of Fact, p. 4). The Court further notes that the father attached certain documents to his objections as alleged further evidence of his diligent efforts, but such documents were not presented to the Support Magistrate1 and therefore this Court cannot consider such proffered evidence when rendering its decision. (See Matter of Redmond v. Easy, 18 AD3d 283, 283-84 [1st Dept. 2005]; Matter of DeVries v. DeVries, 87 AD3d 1139 [2d Dept. 2011]; Matter of Lahrs v. Lahrs, 158 AD2d 944, 944 [4th Dept. 1990]). Regarding the father’s fourth ground for objecting to the Modified Support Order, i.e., the Support Magistrate’s determination that the father would be credited $4,000.00 for direct payment credit, the record supports the Support Magistrate’s determination that there was a discrepancy between each party’s evidence addressing the father’s direct payment of child support to the mother, and the Court finds no basis to disturb the Support Magistrate’s decision to credit the father with a “reasonable amount” between the lower amount the mother claimed she had been paid and the higher amount the father claimed he had paid. (Findings of Fact, pp. 6-7). Accordingly, it is ORDERED that the respondent father’s objections to the Order Modifying an Order of Support After Trial of Support Magistrate Adam E. Small dated July 25, 2019 are denied in their entirety, and the order is affirmed. This constitutes the Decision and Order of the Court. 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 THE COURT, OR 30 DAYS AFTER SERVICE BY A PARTY OR THE LAW GUARDIAN UPON THE APPELLANT, WHICHEVER IS EARLIEST. Dated: September 19, 2019 Check applicable box: Order mailed on [specify date(s) and to whom mailed: __ Order received in court on [specify date(s) and to whom given]: __
