Ceballos v. Castillo
Matter
of Ceballos v Castillo
2011
NY Slip Op 05695
Decided
on June 28, 2011
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 June 28, 2011
SUPREME
COURT OF THE STATE OF
APPELLATE
DIVISION : SECOND JUDICIAL DEPARTMENT
PETER
B. SKELOS, J.P.
THOMAS
A. DICKERSON
L.
PRISCILLA HALL
SANDRA
L. SGROI, JJ.
2010-03894
2010-03895
2010-07058
(Docket
Nos. F-4239-05/09C, F-4239-05/09E)
[*1]In
the Matter of Juan Carlos Ceballos, appellant,
v
Bertha A. Castillo, respondent. (Proceeding
No. 1)
In
the Matter of Westchester County Commissioner of Social Services, on behalf of
Bertha A. Castillo, respondent,
v
Juan Carlos Ceballos, appellant. (Proceeding
No. 2)
George E. Reed, Jr.,
DECISION
& ORDER
In
two related child support proceedings pursuant to Family Court Act article 4,
the father appeals (1), as limited by his brief, from so much of an order of
the Family Court, Westchester County (Jordan, S.M.), entered January 11, 2010,
made after a hearing, as denied his petition for downward modification of his
child support obligation as set forth in a prior order of the same court dated
April 11, 2005, entered on consent, determined that he willfully violated the
child support order dated April 11, 2005, and recommended that he be
incarcerated for a period of six months unless he purged the contempt as
directed by the Family Court at the confirmation proceeding, (2) from an order
of the same court (Horowitz, J.), entered April 13, 2010, which denied his objections
to the order entered January 11, 2010, and (3) from an order of commitment of
the same court (Horowitz, J.), dated July 9, 2010, which, upon, in effect,
confirming the finding of willfulness, directed that he be incarcerated in the
Westchester County Jail for a period of six months with the opportunity to
purge his contempt by payment of the sum of $1,140.
ORDERED
that the appeal from the order entered January 11, 2010, is dismissed, without
costs or disbursements, as that order was superseded by the orders entered
April 13, 2010 and dated July 9, 2010, respectively; and it is further,
ORDERED
that the order entered April 13, 2010, is modified, on the law and on the
facts, by deleting the provision thereof denying the father's objections to so
much of the order entered January 11, 2010, as denied his petition for downward
modification of his child support obligations as set forth in the child support
order dated April 11, 2005, and substituting therefor
a provision granting those objections and vacating the provision of the order
entered January 11, 2010, denying the father's petition for downward
modification of his child support obligation; as so modified, the order entered
April 13, 2010, is affirmed, without costs or disbursements, and the matter is
remitted to the Family Court, Westchester County, for a hearing and
determination of the amount of the father's reduced child support obligation;
and it is further, [*2]
ORDERED that the order of commitment dated July 9, 2010, is
reversed, on the law and on the facts, without costs or disbursements, and the
mother's petition to adjudicate the father in willful violation of the child
support order dated April 11, 2005, is denied.
To
establish entitlement to a downward modification of a child support order
entered on consent, a party has the burden of showing that there has been a
substantial change in circumstances (see Matter of Getty v Getty, 83 AD3d 835; Kasun v Peluso, 82 AD3d 769;
Matter of Jewett v Monfoletto, 72 AD3d 688). Loss of
employment may at times constitute a substantial change in circumstances (see
Baker v Baker, 83 AD3d 977; Matter of Getty v Getty, 83 AD3d 835). A party
seeking a downward modification of his or her child support obligation based
upon a loss of employment has the burden of demonstrating that he or she
diligently sought to obtain employment commensurate with his or her earning
capacity (see Matter of Belmonte v Dreher, 77 AD3d
937).
Here,
the father testified that he is unable to pay child support because he has not worked
since 2008 and is not eligible to receive unemployment benefits. More
specifically, he stated that he had been working for the Renaissance Hotel
until May 2008, but that he left that job after the hotel significantly cut
back his hours. He thereafter obtained employment at a pizzeria, where he was
initially able to work longer hours. Although he was eventually let go from his
position at the pizzeria, he did not, contrary to the Support Magistrate's
finding, quit the pizzeria job. The father further testified in detail that he
attempted to obtain employment at various specified restaurants and
supermarkets; that he went to an employment agency called Labor Ready to find a
job; that he looked for employment in newspapers and the "Pennysaver" publication; and that he explored job
leads which he learned of via word-of-mouth.
Under
these circumstances, the father demonstrated that his loss of employment
constituted a substantial change in circumstances, and that he made a good
faith effort to obtain new employment which was commensurate with his
qualifications and experience (see Matter of Getty v Getty, 83 AD3d 835; Matter
of Awwad v Awwad, 62 AD3d
695). Hence the Support Magistrate's determination that the father failed to
satisfy his burden of establishing an inability to pay his child support
obligation is not supported by the evidence. Accordingly, the father's
objections to the denial of his petition for downward modification of his child
support obligations should have been granted.
To
the extent that the father filed objections to the Support Magistrate's finding
of willfulness and her recommendation of a term of incarceration of six months,
the denial of those objections was proper, since the Support Magistrate's
recommendations had no force and effect until confirmed by the Family Court
Judge (see Matter of Dakin v Dakin, 75 AD3d 639, 639-640; see also Matter of
Roth v Bowman, 245 AD2d 521; Family Ct Act § 1112).
Upon,
in effect, confirming the willfulness finding, the Family Court issued an order
of commitment directing that the father be committed to the Westchester County
Jail unless he purged his contempt by paying the sum of $1140 to the Support
Collection Unit. The father's failure to pay child support constituted prima
facie evidence of a willful violation (see Family Ct Act § 454[3][a]). This prima facie showing shifted the burden to the
father to come forward with competent, credible evidence that his failure to
pay support in accordance with the terms of the order on consent was not
willful (see Matter of Powers v Powers, 86 NY2d 63, 69; see also Matter of Rube
v Tornheim, 67 AD3d 916).
"In
the absence of proof of an ability to pay, an order of commitment for willful
violation of a support order may not stand" (Matter of Grasso v LaRocca, 54 AD3d 760, 760). Based upon the evidence on this
record, the father met his burden of establishing his inability to meet his
child support obligation set forth in the order dated April 11, 2005. The
evidence did not support the Support Magistrate's finding that the father had
the means, resources, and ability to pay child support, but chose not do so
(see Matter of Mazzilli v Mazzilli,
248 AD2d 474).
In
light of our determination, we need not address the father's remaining
contentions. [*3]
SKELOS, J.P., DICKERSON, HALL and
SGROI, JJ., concur.
ENTER:
Matthew G. Kiernan
Clerk
of the Court