FELDSHEROVA v. LEE (2026)

DECISION & ORDER

In a matrimonial action in which the parties were divorced by judgment dated July 17, 2023, the defendant appeals from an order of the Supreme Court, Kings County (Theresa M. Ciccotto, J.), dated October 29, 2024.  The order, inter alia, without a hearing, denied that branch of the defendant's motion which was to suspend his child support obligation.

ORDERED that the order is reversed, on the law, without costs or disbursements, and the matter is remitted to the Supreme Court, Kings County, for a hearing on the defendant's motion and a new determination thereafter.

The parties, who have two children together, were divorced in 2023 pursuant to a judgment which incorporated, but did not merge, two prior agreements.  The agreements provided, inter alia, that the parties would have shared residential custody of the children, the defendant was obligated to pay child support, and the parties could seek modification of the child support provisions if there was a change of 15% or more in either party's gross income.

In January 2024, the defendant moved, among other things, to suspend his child support obligation on the basis of the loss of his job.  During the pendency of the motion, the defendant found new employment, but he alleged that his new job paid substantially less than his previous job.  The plaintiff opposed the defendant's motion.  In an order dated October 29, 2024, the Supreme Court, inter alia, without a hearing, denied that branch of the defendant's motion.  The defendant appeals.

The court may modify an order of child support where “there has been a change in either party's gross income by fifteen percent or more since the order was entered, last modified, or adjusted” (Domestic Relations Law § 236[B][9][b][2][ii][B];  see Shzu v. Marrelli, 243 A.D.3d 609, 611, 246 N.Y.S.3d 377).  “However, such reduction in income shall not be considered as a ground for modification unless it was involuntary and the party has made diligent attempts to secure employment commensurate with his or her education, ability, and experience” (Matter of Matthews v. Yu Wei, 234 A.D.3d 693, 693, 224 N.Y.S.3d 529 [internal quotation marks omitted];  see Matter of Emig v. Emig, 192 A.D.3d 1024, 140 N.Y.S.3d 764).  “ ‘On an application for modification of child support, a hearing is necessary where the parties' evidentiary submissions disclose the existence of genuine issues of fact’ ” (Matter of Matthews v. Yu Wei, 234 A.D.3d at 694, 224 N.Y.S.3d 529, quoting Bishop v. Bishop, 170 A.D.3d 642, 644, 95 N.Y.S.3d 317).

Here, although the defendant demonstrated, prima facie, that his income had decreased by more than 15%, the reduction of income occurred through no fault of his own, and he made diligent efforts to secure comparable employment, a hearing is necessary because the parties' evidentiary submissions disclosed the existence of genuine issues of fact (cf.  Bishop v. Bishop, 170 A.D.3d at 644–645, 95 N.Y.S.3d 317).

Accordingly, we remit the matter to the Supreme Court, Kings County, for a hearing on the defendant's motion and a new determination in accordance with the Child Support Standards Act thereafter (see Matter of Smisek v. DeSantis, 209 A.D.3d 142, 152, 174 N.Y.S.3d 139).

The defendant's remaining contentions need not be addressed in light of our determination.

GENOVESI, J.P., WARHIT, LOVE and QUIRK, JJ., concur.