JORDAN, KAREN E. v. JORDAN, ERIC M. ( 2012 )


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  •         SUPREME COURT OF THE STATE OF NEW YORK
    Appellate Division, Fourth Judicial Department
    1247
    CAF 11-01626
    PRESENT: SCUDDER, P.J., SMITH, CENTRA, LINDLEY, AND WHALEN, JJ.
    IN THE MATTER OF COMMISSIONER OF CATTARAUGUS
    COUNTY DEPARTMENT OF SOCIAL SERVICES, ON BEHALF
    OF KAREN E. JORDAN, PETITIONER-RESPONDENT,
    V                             MEMORANDUM AND ORDER
    ERIC M. JORDAN, RESPONDENT-APPELLANT.
    SCHAVON R. MORGAN, MACHIAS, FOR RESPONDENT-APPELLANT.
    STEPHEN D. MILLER, OLEAN, FOR PETITIONER-RESPONDENT.
    Appeal from an order of the Family Court, Cattaraugus County
    (Michael L. Nenno, J.), entered July 18, 2011 in a proceeding pursuant
    to Family Court Act article 4. The order denied respondent’s written
    objections to an order issued by the Support Magistrate.
    It is hereby ORDERED that the order so appealed from is
    unanimously affirmed without costs.
    Memorandum: Petitioner commenced this proceeding seeking to
    recover child support arrears, and respondent father cross-petitioned
    for a downward modification of his support obligation. Contrary to
    the father’s contention, Family Court properly denied his objections
    to the Support Magistrate’s order that, after a hearing, granted the
    petition and denied the cross petition.
    With respect to the petition, “[t]here is a presumption that a
    [parent] has sufficient means to support his or her . . . minor
    children . . . , and the evidence that [the parent] failed to pay
    support as ordered constitutes ‘prima facie evidence of a willful
    violation’ ” (Matter of Christine L.M. v Wlodek K. [appeal No. 2], 45
    AD3d 1452, 1452; see Family Ct Act §§ 437, 454 [3] [a]; Matter of
    Powers v Powers, 86 NY2d 63, 68-69), “shifting to [the parent] the
    burden of going forward” (Powers, 86 NY2d at 69). To meet that
    burden, the father was required to “offer some competent, credible
    evidence of his inability to make the required payments” (id. at 69-
    70). Where, as here, a parent “testifie[s] that he [or she] was
    unable to meet [the] support obligation because physical [or mental]
    disabilities interfered with his [or her] ability to maintain
    employment, . . . [the parent must] offer competent medical evidence
    to substantiate that testimony” (Matter of Fogg v Stoll, 26 AD3d 810,
    810-811; see Matter of Yamonaco v Fey, 91 AD3d 1322, 1323, lv denied
    19 NY3d 803). The father failed to offer such evidence, and further
    -2-                          1247
    CAF 11-01626
    failed to establish that the disability that allegedly prevented him
    from working continued to exist at the time of the hearing.
    Consequently, the court properly confirmed that part of the Support
    Magistrate’s order that granted the petition.
    The court also properly confirmed that part of the Support
    Magistrate’s order that denied the father’s cross petition. When a
    party seeking to modify a support obligation alleges that “ ‘the
    change in circumstances is the loss of employment, a party seeking a
    downward modification must make a good-faith effort at seeking
    re-employment commensurate with his or her qualifications and
    experience’ ” (Matter of Gray v Gray, 52 AD3d 1287, 1288, lv denied 11
    NY3d 706). Additionally, when a party loses a job due to injury or
    illness, “ ‘the party has the same obligation to find some other type
    of employment, unless that party can demonstrate that he or she is
    unable to perform other work’ ” (id.). Here, the father failed to
    establish either that he made a good faith effort to seek other
    employment or that he is unable to perform other work, and he thus
    failed to meet his burden on the cross petition.
    Entered:   November 9, 2012                     Frances E. Cafarell
    Clerk of the Court
    

Document Info

Docket Number: CAF 11-01626

Filed Date: 11/9/2012

Precedential Status: Precedential

Modified Date: 4/17/2021