SUPREME COURT OF THE STATE OF NEW YORK

Appellate Division, Fourth Judicial Department

535 

CAF 10-02110 

PRESENT: CENTRA, J.P., PERADOTTO, SCONIERS, AND MARTOCHE, JJ.

 

 

IN THE MATTER OF JOHN LEONARDO, 

PETITIONER-APPELLANT, 

V MEMORANDUM AND ORDER

ELAINA M. LEONARDO, RESPONDENT-RESPONDENT. 

(APPEAL NO. 1.)

 

D.J. & J.A. CIRANDO, ESQS., SYRACUSE (ELIZABETH deV. MOELLER OF

COUNSEL), FOR PETITIONER-APPELLANT.

FRANK H. HISCOCK LEGAL AID SOCIETY, SYRACUSE (KRISTEN MCDERMOTT OF

COUNSEL), FOR RESPONDENT-RESPONDENT. 

 

Appeal from an order of the Family Court, Onondaga County

(Michael L. Hanuszczak, J.), entered August 30, 2010 in a proceeding

pursuant to Family Court Act article 4. The order, among other

things, directed petitioner to pay the sum of $282 per week in child

support. 

It is hereby ORDERED that the order so appealed from is

unanimously affirmed without costs.

Memorandum: Petitioner father commenced this proceeding seeking

a downward modification of his child support obligation based on a

change in employment. In the amended petition, the father sought to

vacate the prior order of support and to require respondent mother to

pay him support because he had physical custody of the children for

more time than the mother. Following a hearing, the Support

Magistrate granted the father’s amended petition in part by reducing

his support obligation. Family Court denied the objections of the

father to the Support Magistrate’s order and modified that order by

denying the amended petition in its entirety and increasing the

father’s support obligation. 

The father contends that the Support Magistrate did not have

jurisdiction to hear and determine this proceeding because the father

alleged that he was now the custodial parent (see generally Family Ct

Act § 439 [a]). We reject that contention. The Support Magistrate

properly considered the current custodial arrangement in determining

which parent was the custodial parent for purposes of child support

(see Matter of Hunt v Bartley, 85 AD3d 1275, 1276-1277; Matter of

Moore v Shapiro, 30 AD3d 1054, 1055). Contrary to the father’s

further contention, the court properly imputed income to him and
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CAF 10-02110 

denied his amended petition in its entirety. With respect to the

father’s allegation in the amended petition that he was entitled to a

vacatur of the order of support or a downward modification of his

support obligation on the ground that he was spending more time with

the children, the Support Magistrate and the court properly determined

that he remained the noncustodial parent for child support purposes

(see generally Bast v Rossoff, 91 NY2d 723, 728-732). With respect to

the father’s further allegation in the amended petition that he was

entitled to a downward modification of his support obligation on the

ground that he was no longer employed full time, that fact did not

constitute the requisite change in circumstances because the father

presented no evidence establishing that he diligently sought reemployment commensurate with his former employment (see Matter of

Muselevichus v Muselevichus, 40 AD3d 997, 999; see also Jelfo v

Jelfo, 81 AD3d 1255, 1257). The court therefore properly imputed

income to the father because he failed to demonstrate that he was

unable to earn the same salary that he was earning at the time of the

judgment of divorce (see Matter of Monroe County Support Collection

Unit v Wills, 21 AD3d 1331, 1332, lv denied 6 NY3d 705; see also

Filiaci v Filiaci, 68 AD3d 1810, 1811).

Finally, the father contends that he was denied effective

assistance of counsel. The father did not have a right to counsel in

this child support modification proceeding (see Family Ct Act § 262

[a]; Matter of Commissioner of Social Servs. of City of N.Y. v Remy

K.Y., 298 AD2d 261, 262). The father’s contention therefore may not

be considered absent extraordinary circumstances, which are not

present here (see Lewis v Lewis, 70 AD3d 1432, 1434; Matter of Ferrara

v Ferrara, 52 AD3d 599, 600, lv denied 11 NY3d 706; Matter of Cichosz

v Cichosz, 12 AD3d 598, 599).

Entered: April 20, 2012 Frances E. Cafarell

Clerk of the Court