IN RE: Fernando NUESI (2009)

In a child support proceeding pursuant to Family Court Act article 4, the father appeals from an order of the Family Court, Kings County (Hamill, J.), dated October 8, 2008, which denied his objection to an order of the same court (Fasone, S.M.) dated August 12, 2008, which, after a hearing, dismissed his petition for a downward modification of his child support obligation.

ORDERED that the order dated October 8, 2008, is reversed, on the law, without costs or disbursements, the father's objection is granted, the order dated August 12, 2008, is vacated, and the matter is remitted to the Family Court, Kings County, for a new hearing solely on the issue of the father's ability to pay the amount of support in the judgment of divorce and a new determination of the petition for a downward modification.

The father's contention that the Support Magistrate failed to conduct a proper hearing on the issue of emancipation is without merit. The father and mother were sworn and examined, and findings of fact were made regarding emancipation (cf. Matter of Pringle v. Pringle, 296 A.D.2d 828, 744 N.Y.S.2d 784; Waby v. Waby, 143 A.D.2d 506, 532 N.Y.S.2d 950; Matter of Reynolds v. Reynolds, 50 A.D.2d 993, 377 N.Y.S.2d 240). “A hearing need not follow any particular form, but any meaningful hearing must, at least, consist of an adducement of proof coupled with an opportunity to rebut it” (Waby v. Waby, 143 A.D.2d 506, 532 N.Y.S.2d 950; see Matter of Thompson v. Thompson, 59 A.D.3d 1104, 873 N.Y.S.2d 786).

Here, the father was given an opportunity to provide the court with proof as to the child's emancipation, but failed to do so (cf. Matter of Ademovic v. Reid, 1 A.D.3d 899, 767 N.Y.S.2d 735 [hearing examiner did not allow father to speak in support of his modification petition, and summarily denied the petition] ).

However, the Support Magistrate erred in failing to permit the father to submit evidence regarding his current financial situation. The father was not given an opportunity to provide proof that he was unable to pay the current amount of child support. There was no claim that the father's financial records should be excluded on the grounds that he refused to obey a disclosure order, or failed to disclose information that ought to have been disclosed (see CPLR 3126; Matter of Greenidge v. Greenidge, 56 A.D.3d 473, 867 N.Y.S.2d 477; Matter of Pena v. Diaz, 275 A.D.2d 415, 712 N.Y.S.2d 614). Accordingly, the matter must be remitted to the Family Court, Kings County, for a new hearing on the issue of the father's ability to pay support, followed by a new determination of the petition for a downward modification.

The father's remaining contention is without merit.