New York Family Law Blog
A York Family Lawyer said this is a child support proceeding pursuant to Family Court Act, Article 14, wherein the father appeals from an order of the Family Court, Nassau County entered on 5 May 2006 which denied his objections to eight orders of the same court, seven of which was dated 1 December 2005 and one dated 24 April 2006, inter alia, denying his petition for a downward modification of child support and granting the mother attorney’s fees.
The court affirms the order with costs.
A New York Child Custody Lawyer said the father filed a petition in 1997 seeking a downward modification of his child support obligation. Following a hearing, the Support Magistrate denied the petition on the ground that the father had caused his own inability to pay child support.
A Bronx Family Lawyer said this Court reversed an order of the Family Court, Nassau County, denying the father’s objections to the Support Magistrate’s denial of his petition and remitted the matter to the Family Court, Nassau County, for a new hearing and determination. In reversing, this Court found that the Support Magistrate had erred in refusing to allow the father to examine the mother with respect to the actual expenses of the child. Upon remittitur, a new hearing was held and a new determination made.
A Bronx Child Custody Lawyer said in the Matter of Marrale v Marrale, it was held that the party seeking modification of a support order has the burden of establishing the existence of a substantial change in circumstances warranting the modification. Also, in Matter of Brescia v Fitts, it was held that in exercising its discretion whether to modify a child support order, the Family Court may consider various factors, including a loss of income or assets by a parent or a substantial improvement in the financial condition of a parent. Significantly, the court may consider whether a supporting parent’s claimed financial difficulties are the result of that parent’s intentional conduct as held in Matter of Knights v Knights and Matter of Fries v Price-Yablin.
In the case at bar, it is undisputed that the father caused his own inability to pay child support due to his wrongful conduct resulting in the termination of his employment in 1994. Moreover, it is undisputed that between the termination of his employment in 1994 and the filing of the modification petition in 1997, the father made no attempt to obtain gainful employment. Furthermore, on remittitur, the father failed to establish a substantial improvement in the mother’s financial condition warranting a reduction in child support. Accordingly, the Family Court properly denied the father’s objections to the denial of his petition for downward modification.
Based on Family Ct Act § 438 and Sampson v Glazer and Carter v Carter, in a child support proceeding pursuant to Family Court Act article 4, the court, in its discretion, may award an attorney’s fee to the attorney representing the person who is claiming a right to support on behalf of the child. As with an award of an attorney’s fee made pursuant to Domestic Relations Law § 237 (b), the court will base its decision primarily upon both parties’ ability to pay, the nature and extent of the services required to deal with the support dispute, and the reasonableness of their performance under the circumstances as was held in McCann v Guterl and Matter of Barnes v Barnes. Under appropriate circumstances, to be determined on a case by case basis, the court may consider whether the more financially secure litigant is, in fact, merely waging a campaign of legal harassment against the more needy party as held in Ardito v Ardito.
Here, the father’s actions constituted a campaign of legal harassment. Accordingly, the Support Magistrate did not improvidently exercise its discretion in awarding the mother an attorney’s fee.
The court finds the father’s remaining contentions without merit.
Nassau County Child Support Lawyers and Nassau County Family Lawyers work hand in hand with Stephen Bilkis & Associates to protect the sanctity of a family especially the children. We have proven ourselves experts in these kinds of litigation. If you find yourself tangled up in a situation like the one mentioned above, please feel free to call our number or visit our office.