Matter of Wiener v. Salamy , 37 N.Y.S.3d 909 ( 2016 )

Matter of Wiener v Salamy (2016 NY Slip Op 06222)

Matter of Wiener v Salamy

2016 NY Slip Op 06222

Decided on September 28, 2016

Appellate Division, Second Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on September 28, 2016 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department
REINALDO E. RIVERA, J.P.
CHERYL E. CHAMBERS
SHERI S. ROMAN
SYLVIA O. HINDS-RADIX, JJ.

2015-08532
2015-08533
2015-08534
(Docket Nos. F-5709-06/14O, F-5709-06/14P)

[*1]In the Matter of Fern I. Wiener, respondent,

v

Samuel Salamy, appellant. (Proceeding No. 1)



In the Matter of Samuel Salamy, appellant,

v

Fern I. Wiener, respondent. (Proceeding No. 2)

Russell I. Marnell, P.C., East Meadow, NY, for appellant.

Kenneth J. Weinstein, P.C., Garden City, NY (Michael J. Langer of counsel), for respondent.

DECISION & ORDER

Appeals by the father from (1) an order of the Family Court, Nassau County (Diane M. Dwyer, S.M.), dated October 31, 2014, (2) an order of that court (Tomasina C. Mastroianni, S.M.), dated February 20, 2015, and (3) an order of that court (Conrad D. Singer, J.), dated July 29, 2015. The order dated October 31, 2014, dismissed the father's petition for a downward modification of his child support obligation. The order dated February 20, 2015, granted the mother's motion pursuant to Family Court Act § 454(3) for an award of counsel fees in the amount of $13,044.71. The order dated July 29, 2015, denied the father's objections to the orders dated October 31, 2014, and February 20, 2015.

ORDERED that the orders are affirmed, with one bill of costs.

The Family Court did not err in denying the father's objections to the order dismissing his petition for a downward modification of his child support obligation. The father failed to sustain his burden of establishing a change in circumstances since the time of his last unsuccessful modification petition (see Matter of Funt v Funt, 65 NY2d 893, 894; O'Shea v Cross, 90 AD3d 874; Matter of Leone v Leone, 137 AD2d 753, 755).

The Family Court properly granted the mother's motion for an award of counsel fees in connection with her petition to enforce the father's child support obligation, and her opposition to the father's petition for downward modification of that obligation, based upon a finding that the father willfully failed to comply with that obligation (see Family Ct Act 454[3]), and a finding that the father's petition for downward modification was without merit (see Family Ct Act § 438[a]; Matter Felix v Felix, 110 AD3d 805; Matter of Dinhofer v Zabezhanskaya, 79 AD3d 1039, 1040).

The father's remaining contentions are without merit.

RIVERA, J.P., CHAMBERS, ROMAN and HINDS-RADIX, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court