Decision and Findings of Fact Support Magistrate Sandra Stines, makes the following decision/ findings of fact after trial: Procedural history A support order dated April 30, 2014 directs Kenel Auguste, Petitioner (hereinafter referred to as “Mr. A”) pay $112.00 a week for basic support and $17.72 a week for child care for Cedina Auguste born July 6, 2005 (hereinafter referred to as child). See Order of Support Queens County Family Court. On February 1, 2024 Mr. A filed a petition to downwardly modify that order against Brenda Clark, Respondent (hereinafter referred to as “Ms. C”). See Petition for Modification of an Order of Support Made by Another Court, May 24, 2024, Queens County Family Court Docket F-17731-13/24. On May 24, 2024, Mr. A appeared represented by Harry Reid, Esq., Ms. C did not appear, the matter was adjourned for service and amendment of the petition. On June 13, 2024, Mr. A appeared represented by Harry Reid, Esq., Ms. C appeared waiving counsel, issue joined, a trial order entered and the matter was adjourned for trial marked final for September 6, 2024. On September 6, 2024, resolution was attempted but not had. The matter proceeded to trial with Mr. A represented by Harry Reid, Esq. and Ms. C, waiving counsel. The Court heard testimony on September 6, 2024 from Mr. A and Ms. C. At the close of proof decision was reserved. Evidence Testimony Mr. A’s testimony Mr. A lives in a senior citizen building, is 71, diabetic, has high blood pressure, sciatica and survived cancer. Mr. A retired due to his health condition. He falls on the job. Mr. A said Ms. C “knows I can’t work she knows I am a sick guy”. He goes to the doctor every week. He sees a “pain management doctor”. Mr. A can’t stand on his feet too long. Mr. A gets cancer treatments at Long Island Jewish. Mr. A makes less money than he did when the last order of support was entered and he “struggles with it”. Mr. A retired October 27, 2023 so the wages on his 2023 w-2 (Petitioner’s 2) reflect wages until October 27, 2023. Mr. A’s only income is $1,186.00 a month from a pension and $748.60 month from Social Security. Mr. A’s rent is $738.00 monthly. He pays gas and electric. Mr. A has a 2016 used car registered in his name but purchased for him by his sister from an inheritance given to his sister from his father. Mr. A’s sister pays the car insurance for this car. Although this car requires new brakes, he did not get new brakes so he is “not driving the car that much because I don’t trust it”. Ms. C’s testimony She has worked for the New York State Veteran’s home for 24 years. Ms. C does not want to reduce support. She has done everything on her own and has bills to pay too. Documentary Evidence The following evidence was admitted: Petitioner’s 2 2023 W-2 Petitioner’s 3 Social Security Administration Petitioner’s 4 New York State Local Retirement Systems Petitioner’s 5 financial disclosure affidavit Respondent’s A pay stub Petitioner’s 1 was offered for evidence by Mr. A but not admitted because it was hearsay. Discussion A court may modify an order of child support, upon a showing of a substantial change in circumstances, three years passing since the order was entered, last modified or adjusted or a 15 percent change in income. Family Court Act §451(3)(a)(b)(i)(ii). Mr. A petitioned to downwardly modify his support obligation in the April 30, 2014 order of $112.00 a week for basic support and $17.72 a week for child care. He submitted Petitioner’s 1, 2, 3, 4 and 5 for evidence and testimony in support. Petitioner’s 1 for identification was a letter not admitted into evidence because it is hearsay (The Guide to New York Evidence Rule 8.00) which he could not overcome when the Court inquired of any exceptions. Petitioner’s 2 is a 2023 w-2 that the Court annualized because if Mr. A did not choose to retire on October 27, 2023; his income annualized would be $54,132.00 (see, Matter of Holmes v. Holmes, 140 AD3d 1066, 32 N.Y.S.3d 658 (2d Dep’t 2016); Matter of Baumgardner v. Baumgardner 126 AD3d 895. 6 N.Y.S. 3d 90 (2d Dept 2015); Matter of Levine-Seidman v. Seidman 88 A.D.3d 883, 931 N.Y.S.125 (2d Dept 2011). A parent’s obligation to provide support is not necessarily determined by his or her current financial condition, rather, it is determined by his or her ability to provide support. Mr. A wants to base support on his income in Petitioner’s 3 and 4. A reduction in income shall not be considered as a ground for modification unless it was involuntary and the party has made diligent attempts to secure employment commensurate with his or her education, ability, and experience. Family Court Act §451(3)(a)(ii). It is Mr. A’s burden to show a substantial change in circumstances warranting a downward modification of his child support obligation (see Bishop v. Bishop, 170 AD3d 642, 95 N.Y.S. 3d 317 (2d Dep’t 2019); Matter of Lindsay v. Lindsay-Lewis, 156 AD3d 642, 64 N.Y.S. 3d 564 (2d Dep’t 2017). Mr. A claimed his income be limited to Petitioner’s 3 and 4 because he is disabled. The Court is not bound by his testimony or Petitioner’s 3 and 4. It is his burden to demonstrate through competent, credible evidence that his alleged disabilities prior to, and during the pendency of, the proceeding prevented him from being able to work in any capacity. Pace v. Douglas, 141 A.D.3d 530, 532, 35 N.Y.S.3d 231 (2d Dep’t 2016); see also Gavin v. Worner, 112 A.D.3d 928, 929, 978 N.Y.S.2d 90 (2d Dep’t 2013), Atabay v. Cinar, 96 A.D.3d 832, 833, 946 N.Y.S.2d 224 (2d Dep’t 2012), Aranova v. Aranov, 77 A.D.3d 740, 741 909 N.Y.S. 2d 224 (2d Dep’t 2010). Petitioner’s 3 and 4 and Mr. A’s testimony does not preclude this court from determining he is capable of working, especially since he provided no medical evidence to the contrary. Matter of Anthony S. v. Monique T.B., 148 AD3d 596 (1st Dep’t 2017) Therefore, the Court applied the income in Petitioner’s 2 for Mr. A and the income in Respondent’s A for Ms. C to calculate support. See Appendix A. Such calculation yields a support obligation higher than the last order of support however a court may grant any type of relief within its jurisdiction appropriate to the proof whether demanded or not, imposing such terms as may be just. CPLR 3017 a; see also Family Court Act §164, Alberry v. Alberry, 251 A.D.2d 1080, 675 N.Y.S.2d 575 (4th Dep’t 1998) (Family Court had authority to grant father sole custody of parties’ child, even though he had voluntarily withdrawn his petition for such relief, where mother had cross-petitioned for sole custody, and thus issue was properly before court). Support magistrates are empowered to hear and determine support proceedings. Family Court Act §439 (a). It is fundamental public policy that the child herein be supported by her parents. Matter of Barlow v. Barlow 112 A.D.3d 817, 976 N.Y.S. 2d 573 (2nd Dept 2013). That support is determined by applying both parents income to the Child Support Standards Act Family Court Act §413. Since three years have passed since the last order of support (Family Court Act §451(3)(a)(b)(i)) it would be unjust to deny this child with support based on her parents’ income. Disposition The basic child support obligation for the child herein is modified from the April 30, 2014, order so that it is $302.98 weekly. Ms. C is the custodial party, whose pro rata share of this modified basic child support obligation is $157.55 weekly. Mr. A is the non-custodial party, whose pro rata share of this modified basic child support obligation is $145.43 weekly through the Support Collection Unit retroactive to the date the petition was filed on February 1, 2024. Family Court Act §451(1). Since there was no evidence that the child requires childcare the obligation of $17.72 a week for childcare in the April 30, 2014, order is vacated retroactive to the date the petition was filed on February 1, 2024. Family Court Act §451(1). The retroactive basic child support applied from February 1, 2024 to when the support obligation commences on September 20, 2024 is $1,112.74. The retroactive childcare obligation applied from February 1, 2024 results in a credit for Mr. A of $584.76 which is deducted from the amount owed for retroactive child support making same $527.98. ORDERED, that pursuant to Family Court Act §451 the April 30, 2014 order of support is modified from February 1, 2014 so that Mr. A’s support obligation is $145.43 weekly commencing September 20, 2024 payable through the Support Collection Unit. ORDERED, that pursuant to Family Court Act §451 the April 30, 2014 order of support is modified from February 1, 2014 so that the child care obligation is vacated. ORDERED, that pursuant to Family Court Act §451 Mr. A owes $527.98 for retroactive child support payable through the Support Collection Unit. Dated: September 18, 2024
