Supreme Court, Appellate Division, Second Department, New York.
IN RE: Michael Alan BERG, Appellant, v. Julie Sue BERG, Respondent.
Decided: November 14, 2018
SHERI S. ROMAN, J.P., ROBERT J. MILLER, FRANCESCA E. CONNOLLY, ANGELA G. IANNACCI, JJ.
Lisa Siano, Merrick, NY, for appellant. Richman & Levine, P.C., Garden City, N.Y. (Ira W. Seligman of counsel), for respondent.
DECISION & ORDER
In a proceeding pursuant to Family Court Act article 4, the father appeals from an order of the Family Court, Nassau County (Merik R. Aaron, J.), dated May 5, 2017. The order denied his objections to an order of the same court (Elizabeth A. Bloom, S.M.), dated October 14, 2016, which, after a hearing, denied his petition for a downward modification of his spousal maintenance and child support obligations under the parties' judgment of divorce.
ORDERED that the order dated May 5, 2017, is affirmed, without costs or disbursements.
The parties were divorced by a judgment dated August 1, 2012, which set forth, inter alia, the father's obligations with respect to spousal maintenance and child support for the parties' daughter. In December 2014, the father commenced the instant proceeding pursuant to Family Court Act article 4 for a downward modification of those obligations, alleging that he had recently lost his job. Following a hearing, the Support Magistrate denied the father's petition. Thereafter, in an order dated May 5, 2017, the Family Court denied the father's objections to the Support Magistrate's order. The father appeals.
A party seeking a downward modification of his or her spousal maintenance and child support obligations set forth in a judgment of divorce must establish a substantial change in circumstances (see Family Ct Act §§ 466[c][ii] and 451[a]; see also Isichenko v. Isichenko, 161 A.D.3d 833, 75 N.Y.S.3d 530). Loss of employment may constitute a substantial change in circumstances where the termination occurred through no fault of the party seeking modification and he or she diligently sought re-employment commensurate with his or her earning capacity (see Matter of Smith v. McCarthy, 143 A.D.3d 726, 727, 38 N.Y.S.3d 588; Matter of Riendeau v. Riendeau, 95 A.D.3d 891, 892, 943 N.Y.S.2d 215; Schwaber v. Schwaber, 91 A.D.3d 939, 940, 937 N.Y.S.2d 625). Here, the father failed to establish that the termination of his employment did not occur though his own fault (see Matter of Lindsay v. Lindsay–Lewis, 156 A.D.3d 642, 643, 64 N.Y.S.3d 564), or that he diligently sought new employment commensurate with his qualifications and experience. Accordingly, we agree with the Family Court's denial of the father's objections to the Support Magistrate's finding that the father was not entitled to a downward modification of his support obligations (see Matter of Addimando v. Huerta, 147 A.D.3d 750, 752, 46 N.Y.S.3d 168; Matter of Rubenstein v. Rubenstein, 114 A.D.3d 798, 799, 980 N.Y.S.2d 531).
The father contends that he was deprived of the effective assistance of counsel. Since the father did not have the right to assigned counsel in this support modification proceeding (see Family Ct. Act § 262[a]; Matter of Diaz v. Smatkitboriharn, 158 A.D.3d 760, 761, 71 N.Y.S.3d 150; Matter of Nicotra v. Nicotra, 139 A.D.3d 1070, 1071, 30 N.Y.S.3d 850), he must establish the existence of extraordinary circumstances in order for his claim of ineffective assistance of counsel to be entertained (see Matter of Nassau County Dept. of Social Servs. v. King, 149 A.D.3d 942, 943, 53 N.Y.S.3d 130). Here, the father failed to establish the existence of any extraordinary circumstances to warrant entertaining such a claim (see HBJOBaron Assoc. v. Leahing, 142 A.D.3d 585, 585, 36 N.Y.S.3d 610; Nugent v. Diocese of Rockville Ctr., 137 A.D.3d 760, 761, 26 N.Y.S.3d 556).
ROMAN, J.P., MILLER, CONNOLLY and IANNACCI, JJ., concur.
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