Matter of Rodney W. v Natasha L.
Annotate this CaseDecided on September 8, 2015
Family Court, Kings County
In the Matter of a Proceeding for Support Under Article 4 of the Family Court Act, Rodney W., Petitioner,
against
Natasha L., Respondent.
F-26604-08/14B
Petitioner:Rodney White
Pro se
Respondent:Natasha Lawton
Pro se
Adam Silvera, J.
PURSUANT TO SECTION 1113 OF THE FAMILY COURT ACT, AN APPEAL FROM THIS ORDER MUST BE TAKEN WITHIN 30 DAYS OF RECEIPT OF THE ORDER BY APPELLANT IN COURT, 35 DAYS FROM THE DATE OF MAILING OF THE ORDER TO APPELLANT BY THE CLERK OF COURT, OR 30 DAYS AFTER SERVICE BY A PARTY OR THE LAW GUARDIAN UPON THE APPELLANT, WHICHEVER IS EARLIEST.
ADAM SILVERA, J.:
Petitioner and respondent are the parents of one (1) child, whom resides with respondent. On March 11, 2014, petitioner filed the instant petition seeking a downward modification of his child support obligation. Following a hearing, the support magistrate, John Fasone ("Support Magistrate Fasone"), issued an order, dated July 14, 2015, dismissing petitioner's petition without prejudice. Thereafter, petitioner, pro se, filed a timely objection, arguing, inter alia, that Support Magistrate Fasone erred in: (1) increasing his portion of the child care expenses; (2) failing to consider petitioner's travel expenses related to exercising his visitation with the child; (3) failing to consider petitioner's medical debt totaling over $30,000.00; (4) failing to consider petitioner's tax debt totaling $29,131.00; (5) failing to consider that petitioner has fallen below the self-support reserve; and (6) ordering that petitioner be responsible for the child's medical insurance, as insurance is not provided through respondent's employment. No rebuttal was filed.
During this proceeding, respondent appeared pro se, and for the majority of this proceeding petitioner also appeared pro se. However, on the July 14, 2015 hearing date, petitioner appeared with counsel and was represented during the hearing. The tape recordings of the hearing reveal that both petitioner and respondent's income increased since the original child support order dated January 20, 2009, and the Order Modifying an Order of Support dated September 28, 2009. In this modification petition, the Court notes that petitioner has the burden to demonstrate a change in circumstances to modify the court's prior order. See Family Court Act § 451(2)(a). As petitioner failed to meet his burden, the Court denies petitioner's objection in its entirety, for the reasons discussed below.
Petitioner's objection to Support Magistrate Fasone's final order, dated July 14, 2015 [FN1] , argues, inter alia, that Support Magistrate Fasone increased petitioner's portion of the child care expenses without proof from respondent as to such expenses. However, Support Magistrate Fasone dismissed petitioner's modification petition and continued the existing order of support from September 28, 2009. Support Magistrate Fasone did not increase petitioner's child care expenses, rather, the magistrate merely continued the order which has been in place for almost six (6) years. Thus, petitioner's argument is inapposite, such that petitioner's objection as to child care expenses is denied.
Similarly, petitioner argues that Support Magistrate Fasone ordered that petitioner be responsible for the child's medical insurance, as respondent is not provided insurance through her employment. However, as stated above, the Final Order, dated July 14, 2015, merely dismissed petitioner's modification petition and continued the existing order of support. As such, petitioner's objection as to medical insurance is also denied.
Petitioner further argues that Support Magistrate Fasone failed to consider petitioner's travel expenses related to exercising his visitation with the child; namely plane tickets for the child to travel between New York and Georgia for the visits. A review of the tape recordings of the hearing on July 14, 2015 reveals that petitioner testified, during cross-examination, that he has never paid for airplane tickets for the child to visit him. Accordingly, there was no such expense for Support Magistrate Fasone to consider. Moreover, even if travel expenses existed, despite petitioner's sworn testimony to the contrary, petitioner failed to provide Support Magistrate Fasone with any proof of such expenses. As such, petitioner failed to meet his burden to demonstrate the existence of travel expenses, and any change in circumstance that would require a downward modification. Thus, petitioner's objection as to travel expenses is denied.
Next, petitioner argues that Support Magistrate Fasone failed to consider petitioner's tax debt totaling $29,131.00. During the hearing, petitioner proffered an agreement, dated May 15, 2015, which settles his federal tax debt with a payment plan of $400.00 a month with the first payment to commence in July 2015. In considering taxes, the Family Court Act § 413(1)(b)(5)(vii)(H) specifically states that the magistrate may deduct, from income, "federal insurance contributions act (FICA) taxes actually paid" from income. At the hearing, petitioner testified that he owes over $29,000.00 in federal taxes and that he had not commenced the [*2]payment plan. As such, Support Magistrate Fasone did not err in failing to consider petitioner's federal tax debt, as petitioner conceded he had not actually paid any such taxes in accordance with his payment plan. Petitioner's objection as to his federal tax debt is denied. Likewise, petitioner's argument that Support Magistrate Fasone erred in failing to consider petitioner's medical debt totaling over $30,000.00 is inapposite. At the hearing, petitioner specifically testified that he paid only nominal amounts toward some of his medical debt; between $5.00 and $25.00. Thus, petitioner's objection as to his medical debt is also denied.
Lastly, petitioner argues that Support Magistrate Fasone failed to consider that petitioner has fallen below the self-support reserve. Through petitioner's proof of income and testimony, it was established that petitioner earned $88,992.12 in 2013, and over $89,000.00 in 2014. While petitioner testified at the hearing that his payments for his federal tax debt, as well as for his student loans, are taken directly out of his paycheck, petitioner also testified that after paying his bills, he brings home approximately $830.00 bi-weekly. Even if the Court disregarded petitioner's actual proven annual income of approximately $89,000.00, and took this $830.00 bi-weekly amount as true, petitioner's self-reported take home income would be $21,580.00 annually. Pursuant to Family Court Act
§ 413(1)(b)(6), the self-support reserve for 2015 is $17,655.00. Thus, it is clear that petitioner has not fallen below the self-support reserve, even based upon petitioner's unsubstantiated testimony that he only brings home approximately $830.00 bi-weekly. Petitioner's objection as to the self-support reserve is denied.
Accordingly, it is hereby
ORDERED that the petitioner's objection is denied in its entirety. Notify the parties and Support Magistrate Fasone.
This constitutes the decision and order of the Court.
Dated: September 8, 2015
__________________________________________
ADAM SILVERA
Judge of the Family Court
From:Monica Cheng
Sent:Tuesday, September 08, 2015 5:49 PM
To:decisions@alm.com; Reporter
Cc:Hon. Adam Silvera
Subject:Opinions Submitted Electronically
Attachments:W. v L. - downward mod. dismissed, no change in circumstance.wpd
Please consider for publication, the attached decision by the Hon. Adam Silvera, in the case of W. v L., Docket Number F-26604-08/14B, issued on September 8, 2015, which is attached in WordPerfect format.
The decision will be of interest to members of the bench and bar, as it discusses numerous factors considered in determining whether to modify a child support order, which include, but are not limited to travel expenses, tax debt, and the self-support reserve.
The decision is saved as: W. v L. — downward mod. dismissed, no change in circumstance.wpd
The appearances of counsel are as follows:
Petitioner: Rodney White
Pro se
Respondent: Natasha Lawton
Pro se
Thank you very much.
Monica Cheng
Senior Court Attorney to
Hon. Adam Silvera
Kings County Family Court
330 Jay Street, Room 10.13
Brooklyn, NY Footnotes
Footnote 1:The Court notes that petitioner's written objection states that he is objecting to a final order dated July 24, 2015. However, no such order exists. Support Magistrate Fasone's final order dismissing the petition is dated July 14, 2015, not July 24, 2015.
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