A.D. v. D.D.

DECISION & ORDER AFTER MOTION TO DISMISS The parties have three children-in-common. On July 25, 2022, the mother, A.D. (hereinafter “Mother” or “Ms. D”) filed a support petition against the father, D.D. (hereinafter “Father” or “Mr. D”). See Petition for Support (D, 07/25/2022), Nassau County Family Court Docket Number F-05535-22/24C. Despite attempts to settle the matter, the parties were unable to resolve the case. On October 20, 2023, a trial in the matter commenced. The Court heard testimony on October 20, 2023 and November 13, 2023. Both parties were sworn and self-represented. The Court found Mr. D to be incredible. Mr. D’s answers to questions were less than forthcoming; to wit, they were oftentimes stilted, vague, or argumentative. Much of his testimony was self-serving and went unsubstantiated. As an example, Mr. D told the Court that he did not hold a security license, but the subpoenaed records in evidence belied such testimony. As another example, Mr. D told the Court that he was not employed in the security field, but he then stated that he was working as a security guard so he could pay his child support obligation. As yet another example, Mr. D told the Court that he was homeless but he then stated that he paid rent on a monthly basis. He downplayed his security employment despite countless photographs of him at venues, wearing shirts and bulletproof vests with the word “security” printed on them, while he stood next to celebrities. His claims that the expensive clothes, sneakers and jewelry he was wearing in the pictures admitted into evidence had been purchased at a reduced cost, or found on floors in nightclubs where he socialized, were patently unbelievable. Further, Mr. D’s demeanor and comments were less than appropriate during trial. He was repeatedly warned to correct his poor behavior or he would be considered to have absented himself from the proceedings. His conduct improved as the trial proceeded, but was not ideal. On November 22, 2023, this Court issued a decision and order after trial. See Decision/Findings of Fact and Order after Trial (Mendelson-Toscano, S.M., 11/22/2023), Nassau County Family Court Docket Number F-05535-22. After considering the evidence,¹ the parties’ arguments, and the law, the Court imputed income to Mr. D in the amount of $41,690.00 annually.² Such salary was consistent with the proof presented that Mr. D maintained a security license, was registered to work with three different security companies, worked regularly at concerts, shows and other events with superstars in the entertainment industry, and had no disabilities that prevented him from working in a full-time capacity.³ After having performed the Child Support Standards Act calculations, the Court directed Mr. D to pay $1,011.00 monthly towards basic child support and his 51 percent pro rata share of the children’s medical premiums, unreimbursed medical expenses and child care, retroactive to Ms. D’s support petition’s filing date of July 25, 2022. On March 8, 2024, Mr. D filed a modification petition. See Pet. for Modification of an Order of Support (D, 03/08/2024), Nassau County Family Court Docket Number F-05535-22/24A. In his petition, he alleged that he never earned the amount that the Court imputed to him and that his security license was about to expire. Ms. D orally moved to dismiss the matter. The Court found Mr. D’s failure to attach supporting documentation to his modification petition was fatal. Rather than permit the Court to dismiss his case, Mr. D withdrew his petition without prejudice. On August 12, 2024, Mr. D filed another modification petition. See Pet. for Modification of an Order of Support (D, 08/12/2024), Nassau County Family Court Docket Number F-05535-22/24C. In his petition, he alleged that a substantial change in circumstances occurred; in that, his security license expired, his employment changed, and he has never earned more than $30,000.00 a year. See id. On September 6, 2024, Ms. D filed a motion to dismiss. See Resp’t's Not. of Mot. to Dismiss (D, 09/04/2024), Nassau County Family Court Docket Number F-05535-22/24C; see also Resp’t's Aff. in Supp. (D, 09/04/2024), Nassau County Family Court Docket Number F-05535-22/24C. In her motion, Ms. D argued that Mr. D’s petition is “frivolous.” Id. She asserted that Mr. D’s claim that this Court’s assessment of his income is incorrect is barred by collateral estoppel. Id. She maintained that Mr. D’s “willful failure to renew [his] professional license” does not entitle him to a downward modification. Id. On October 28, 2024, Mr. D filed opposition papers. See Pet’r's Resp. to Resp’t's Not. of Mot. to Dismiss (D, 10/26/2024), Nassau County Family Court Docket Number F-05535-22/24C; see also Aff. in Resp. to Resp’t's Not. of Mot. to Dismiss (Aaron, 10/26/2024), Nassau County Family Court Docket Number F-05535-22/24C. Ms. D chose not to file reply papers. On November 6, 2024, the motion was marked as submitted. The Court’s determination follows: DISCUSSION THOSE PORTIONS OF MR. D’S PETITION ALLEGING LICENSE EXPIRATION AND ATTENDANT WORK STATUS CHANGE ARE DISMISSED, WITH PREJUDICE, BASED UPON HIS FAILURE TO STATE A CAUSE OF ACTION A party to a family court action may file a motion to dismiss alleging his or her adversary’s failure to state a cause of action. See N.Y. C.P.L.R. §3211(a)(7) (McKinney’s 2024); see also N.Y. FAM. CT. ACT §165(a) (McKinney’s 2024) (FCA adopts and applies CPLR where FCA is silent). In its analysis, the Court must construe the petition liberally to determine whether, within the pleading’s four corners, there exists a cognizable cause of action. See Eccles v. Shamrock Cap. Advisors, LLC, 2024 N.Y. Slip. Op. 02841, at *13 (May 23, 2024); see also Burton v. Porcelain, 223 A.D.3d 775, 776 (2d Dep’t 2024); Martin v. Liberty Mutual Ins. Co., 92 A.D.3d 729, 730 (2d Dep’t 2012). The Court must accept all alleged facts within the pleadings to be true and afford the petitioner the benefit of every possible favorable inference. See Eccles, 2024 N.Y. Slip. Op. 02841, at *13; see also Koska v. Koska, 226 A.D.3d 780, 782 (2d Dep’t 2024); Burton v. Porcelain, 223 A.D.3d 775, 776 (2d Dep’t 2024); Martin, 92 A.D.3d at 730. That is to say, a motion to dismiss for failure to state a cause of action may be granted only where, accepting the petition’s alleged facts as true, the moving papers establish conclusively that there is no claim for relief stated within the petition. See N.Y. C.P.L.R. §3211(a)(7) (McKinney’s 2024); see also Noble v. Graham, 8 A.D.3d 641, 642 (2d Dep’t 2004); Fields v. Leeponis, 95 A.D.2d 822, 822 (2d Dep’t 1983). Moreover, when seeking a modification, a petitioner has the burden of proving that a substantial change in circumstances has occurred. See N.Y. FAM. CT. ACT §451(3)(a) (McKinney’s 2024); see also Yaroshevsky v. Yaroshevsky, 219 A.D.3d 609, 611 (2d Dep’t 2023); Good v. Ricardo, 189 A.D.3d 830, 831 (2d Dep’t 2020); O’Donoghue v. O’Donoghue, 214 A.D.3d 876, 877 (2d Dep’t 2023); Cywiak v. Packman, 214 A.D.3d 652, 653 (2d Dep’t 2023); Lopez v. Campoverde, 201 A.D.3d 719, 720 (2d Dep’t 2022); Castelli v. Maiuri-Castelli, 198 A.D.3d 752, 753 (2d Dep’t 2021); Vetrano v. Vetrano, 177 A.D.3d 890, 891 (2d Dep’t 2019). Thus, in order to decide the instant motion to dismiss, the Court must determine whether Mr. D has sufficiently alleged that a substantial change in circumstances exists warranting a modification of the parties’ child support order. Should the Court find in the affirmative, the court may⁴ — but does not have to — modify the parties’ child support order. See N.Y. FAM. CT. ACT §451(3)(a) (McKinney’s 2024). Although loss of employment or a reduced salary may represent a substantial change in circumstances, a petitioner must show that such job situation was not of his or her own making. See N.Y. FAM. CT. ACT §451(3)(b)(ii) (McKinney’s 2024); see also Yaroshevsky, 219 A.D.3d at 612 (holding family court properly denied objections to support magistrate’s finding father failed to demonstrate job loss not his fault); Vilmont v. Vilmont, 219 A.D.3d 608, 609 (2d Dep’t 2023) (affirming support magistrate’s decision; father failed to show employment termination through no fault of own); Lorenzo v. Lorenzo, 146 A.D.3d 959, 960 (2d Dep’t 2017) (upholding support magistrate’s determination; father failed to establish loss of job not of own making). In other words, it is well-settled that a parent’s own decisions and actions will not justify a downward modification.⁵ See e.g. Roberts v. Roberts, 176 A.D.3d. 1226, 1227 (2d Dep’t 2019) (affirming denial of downward modification; father’s alleged decrease in income was result of “self-created hardship”); Austein-Gillman v. Gillman, 292 A.D.2d 524, 524 (2d Dep’t 2002) (father’s “financial deterioration was caused by his own actions and decisions”); Grettler v. Grettler, 12 A.D.3d 602, 603 (2d Dep’t 2004) (self-imposed hardship, due to arrest and resulting employment termination, did not warrant downward modification); Doyle v. Doyle, 230 A.D.2d 795, 796 (2d Dep’t 1996) (child support reduction unwarranted where father decided to alter circumstances by investing assets in new business venture). Thus, a parent who voluntarily quits his or her job is considered to have caused his or her loss of employment. See e.g. Bonnano v. Bonanno, 222 A.D.3d 863, 865 (2d Dep’t 2023) (where father left employment to start own business, no substantial change in circumstances); Lindsay v. Lindsay-Lewis, 156 A.D.3d 642, 643 (2d Dep’t 2017) (where father quit job to follow girlfriend to Florida, not entitled to downward modification); Vasquez v. Powell, 111 A.D.3d 754, 754 (2d Dep’t 2013) (finding mother failed to prove change in circumstances where she electively left job); Rosalind E.E. v. William E.E., 4 A.D.3d 629, 630 (3d Dep’t 2004) (upholding denial of downward modification where father left job to avoid being fired). Cf. Parmenter v. v. Nash, 166 A.D.3d 1475, 1476-477 (4th Dep’t 2018) (where parent quits job for compelling reason, such as need to live closer to child, requisite change in circumstances found to reexamine child support obligation). Analogously, a parent who surrenders a professional license or permits one to to expire is ineligible for a decrease in his or her child support obligation. See Lago v. Adrion, 93 A.D.3d 697, 699-700 (2d Dep’t 2012) (finding deletion of divorce provision necessary; stipulation stated loss of law license due to suspension, revocation or otherwise, and consequent inability to sustain level of income, constituted sufficient change in circumstances); see also Latimer v. Cartin, 57 A.D.3d 1264, 1264-265 (3d Dep’t 2008) (affirming denial of downward modification where father voluntarily surrendered medical license resulting in loss of income). Where a petitioner seeks a downward modification based upon job loss or a decreased income, such petitioner must also show that he or she has been diligently searching to secure employment commensurate with his or her background and experience. See N.Y. FAM. CT. ACT §451(3)(b)(ii) (McKinney’s 2024); see also Vilmont, 219 A.D.3d at 609 (upholding support magistrate determination; father failed to produce job search evidence and did not show other efforts to procure equivalent employment); Evans v. White, 173 A.D.3d 864, 865 (2d Dep’t 2019) (no change in circumstances; no diligent efforts made to obtain similar employment); Riendeau v. Rindeau, 95 A.D.3d 891, 892 (2d Dep’t 2012) (affirming denial of downward modification where payor failed to meet burden, having offered unsubstantiated, conclusory allegations that he diligently sought employment); Uher v. Uher, 88 A.D.3d 732, 732 (2d Dep’t 2011) (finding denial of downward modification petition proper since payor did not persistently seek employment); Awwad v. Awwad, 62 A.D.3d 695, 695 (2d Dep’t 2009) (holding family court should have granted payee’s objections where payor failed to present competent proof that he made good-faith effort to find employment); Muselevichus v. Muselevichus, 40 A.D.3d 997, 999 (2d Dep’t 2007) (where payor did not use best efforts to obtain suitable employment, upholding downward modification denial). Mr. D alleges that he is “no longer licensed to do security.” Petition for Support (D, 07/25/2022), Nassau County Family Court Docket Number F-05535-22/24C. He attached a copy of his security guard license, with an expiration date of April 28, 2024, to his petition. However, there was no proof affixed from a state licensing bureau establishing that Mr. D’s license actually expired. In other words, his license could have expired, but he may have renewed it since that time. Assuming arguendo that Mr. D’s security guard license has truly expired, Mr. D’s failure to renew such license is a self-created hardship. So, too, is his allegation of a change in employment which unequivocally stems from his expired license. Mr. D’s argument, “if offered a security position, [he] will spend the money to obtain a current security license,” is ill-conceived and circular reasoning since he needs a security license to obtain such employment. Petition for Support (D, 07/25/2022), Nassau County Family Court Docket Number F-05535-22/24C. Moreover, his petition did not include proof that he is actively seeking such work on a regular basis. Mr. D attached a mere twoweek job search from Indeed, a global matching and hiring platform. Out of the meager seven jobs to which he applied during that time period, two were warehouse work, two were maintenance work, one was a non-CDL truck driving position, and only two were security positions. Of those two security positions, one required administrative experience which Mr. D does not possess according to his statements on the record. In sum, Mr. D’s efforts to secure a job with a comparable income have been paltry at best. The Court finds that accepting all of the alleged facts within the pleadings to be true, Mr. D has failed to sufficiently set forth a cause of action for which the Court may grant him the relief he seeks; in that, his expired license and attendant work status change are a self-created hardship which does not justify a downward modification. Accordingly, those portions of Mr. D’s petition relating to his allegations of license expiration and attendant work status change are dismissed with prejudice. THAT PORTION OF MR. D’S PETITION ALLEGING HE HAS NEVER EARNED MORE THAN $30,000.00 ANNUALLY IS DISMISSED, WITH PREJUDICE, BASED UPON THE COLLATERAL ESTOPPEL DOCTRINE Under the collateral estoppel doctrine, also known as issue preclusion, a party is barred from litigating an issue which had been previously decided against him or her in a prior proceeding in which he or she had a full and fair opportunity to litigate the issue. See Solomon v. Solomon, 2024 N.Y. Slip. Op. 04774, at *1 (2d Dep’t Oct. 2, 2024) (mother precluded from relitigating what she failed to prove in prior proceeding); see also Lynch v. Lynch, 162 A.D.3d 1034, 1035 (2d Dep’t 2018) (family court properly applied collateral estoppel doctrine where jurisdictional issue previously decided in prior child support enforcement proceeding); Wen Zong Yu v. Hua Fan, 145 A.D.3d 737, 737 (2 Dep’t 2016) (father’s allegations in petition barred by collateral estoppel). Mr. D’s current downward modification petition raises identical issues which were already decided in a full and fair hearing during which he had an opportunity to litigate those facts. During the course of the parties’s 24B petition, on July 9, 2024, Mr. D admitted on the record that he bore the blame for the Court’s decision after trial against him. See For the Record Audio Recording (D v. D, 07/09/2024), Nassau County Family Court Docket Number F-05535-22/24B. He acknowledged that he failed to provide his mandatory financial disclosure and failed to properly participate during trial, being extremely difficult most of the time. See id. The Court finds that Mr. D’s allegation that he has never earned more than $30,000.00 annually is barred by collateral estoppel. Accordingly, that portion of his petition is dismissed with prejudice. CONCLUSION ADJUDGED, that Ms. D’s motion pursuant to New York State Civil Practice Law and Rules Sections 3211(a)(7), is hereby granted and it is further, ADJUDGED, that those portions of Mr. D’s petition alleging license expiration and attendant work status change are dismissed, with prejudice, based upon his failure to state a cause of action; and it is further, ADJUDGED, that portion of Mr. D’s petition alleging he has never earned more than $30,000.00 annually is dismissed, with prejudice, based upon the collateral estoppel doctrine; and it is therefore, ORDERED, that Mr. D’s downward modification petition is hereby dismissed, with prejudice, with respect to any claims alleged therein. This constitutes the decision, opinion and order of the Court. YOUR WILLFUL FAILURE TO OBEY THIS ORDER MAY, AFTER COURT HEARING, RESULT IN YOUR COMMITMENT TO JAIL FOR A TERM NOT TO EXCEED SIX MONTHS FOR CRIMINAL NON-SUPPORT OR CONTEMPT OF COURT; YOUR FAILURE TO OBEY THIS ORDER MAY RESULT IN SUSPENSION OF YOUR DRIVER’S LICENSES, STATEISSUED PROFESSIONAL, TRADE, BUSINESS AND OCCUPATIONAL LICENSES AND RECREATIONAL AND SPORTING LICENSES AND PERMITS; AND IMPOSITION OF REAL OR PERSONAL PROPERTY LIENS. PURSUANT TO SECTION 1113 OF THE FAMILY COURT ACT, AN APPEAL 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 APPELLANT, WHICHEVER IS EARLIEST. 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]: Dated: November 8, 2024