Doreen Dey Ritchey, respondent, v Jeffrey Wayne Ritchey, appellant. v. << (2011)

Submitted-February 22, 2011

DECISION & ORDER

In a matrimonial action in which the parties were divorced by judgment entered January 29, 2009, the defendant appeals, as limited by his brief, from so much of an order of the Supreme Court, Suffolk County (Blydenburgh, J.), dated November 9, 2009, as denied, without a hearing, that branch of his motion which was for a downward modification of his child support obligations set forth in a stipulation of settlement, which was incorporated but not merged into the judgment of divorce.

ORDERED that the order is reversed insofar as appealed from, on the law, with costs, and the matter is remitted to the Supreme Court, Suffolk County, for a hearing on, and thereafter a new determination of, that branch of the defendant's motion which was for a downward modification of his child support obligations.

A party seeking to modify a child support provision contained in a stipulation of settlement that has been incorporated but not merged into a judgment of divorce must demonstrate a substantial “unanticipated and unreasonable change in circumstances” (Klein v. Klein, 74 AD3d 753, 753;  see Schlakman v. Schlakman, 38 AD3d 640;  Praeger v. Praeger, 162 A.D.2d 671;  Epel v. Epel, 139 A.D.2d 488, 488).  “Absent a prima facie demonstration of entitlement to a downward modification, the party seeking modification has no right to a hearing” (Lewis v. Lewis, 43 AD3d 462, 463;  Miller v. Miller, 18 AD3d 629;  Mishrick v. Mishrick, 251 A.D.2d 558).  “A hearing is necessary on the issue of changed circumstances where the parties' affidavits disclose the existence of genuine questions of fact” (Schnoor v. Schnoor, 189 A.D.2d 809, 810;  see Conway v. Conway, 79 AD3d 965;  David v. David, 54 AD3d 714;  see generally Wyser-Pratte v. Wyser-Pratte, 66 N.Y.2d 715, 716-717).

“A parent's loss of employment may constitute a change of circumstances warranting a downward modification where he or she has diligently sought re-employment” (Reynolds v. Reynolds, 300 A.D.2d 645, 646;  see Conway v. Conway, 79 AD3d 965;  Matter of Ketcham v. Crawford, 1 AD3d 359, 360-361;  Matter of Meyer v. Meyer, 205 A.D.2d 784).   Here, the defendant made a prima facie showing of a substantial unanticipated and unreasonable change in circumstances by submitting an affidavit in support of his motion in which he averred that he unexpectedly lost his job, that he was regularly sending resumes to potential employers, that he had been on numerous interviews in search of new employment, and that he was unable to find work (see David v. David, 54 AD3d 714;  Lewis v. Lewis, 43 AD3d at 463;  Reynolds v. Reynolds, 300 A.D.2d at 646;  Severino v. Severino, 243 A.D.2d 702, 703;  cf.  Conway v. Conway, 79 AD3d 965).   Accordingly, that branch of the defendant's motion which was for a downward modification of his child support obligations was improperly denied without a hearing (see Wyser-Pratte v. Wyser-Pratte, 66 N.Y.2d at 716-717;  David v. David, 54 AD3d 714;  Schnoor v. Schnoor, 189 A.D.2d at 810).

SKELOS, J.P., BALKIN, AUSTIN and SGROI, JJ., concur.

ENTER:

Matthew G. Kiernan

Clerk of the Court