On January 29, 2008, the attorney for the petitioner filed "Objections to the Order of Support Magistrate." The Support Magistrate's Order was filed and entered on December 24, 2007. An Affidavit of Service has been filed with the Court, indicating proper service of the Objections upon the attorney for the respondent. On February 6, 2008, the attorney for the respondent filed "Rebuttal to Objections." An Affidavit of Service has been filed with the Court, indicating proper service of the Rebuttal upon the attorney for the petitioner.

On June 28, 2007, the petitioner filed a petition seeking a downward modification of the support order dated October 10, 2006 and the parties' Judgment of Divorce. The petitioner alleged that his income has decreased since the date of the orders.

A hearing was conducted on December 5, 2007 with the petitioner and the respondent each appearing with counsel. In the Findings of Fact attached to the Decision/Order, the Support Magistrate found that the petitioner's income had decreased but that he did not meet his burden of demonstrating that the reduced income was not due to his own actions and that he had made reasonable efforts to find a better paying job. Based upon these findings, the Support Magistrate dismissed the petition. The Support Magistrate's order of dismissal was without prejudice so as to allow the petitioner to refile if he could meet his burden of proof to gain a downward modification.

The attorney for the petitioner objects to the order of dismissal, arguing that the petitioner's reduced income is a result of a series of events that can be attributed to his alcoholism. The attorney also argues that the petitioner no longer receives certain fringe benefits which accrued to him during the time when he owned his own business. The attorney also argues that the petitioner has received treatment for alcoholism.

The attorney for the respondent asserts that the petitioner would have to show an unanticipated or unreasonable change of circumstances in order to modify a child support [*2]obligation set by the terms of the parties' Separation/ Opting Out Agreement which was later incorporated but not merged into the parties' divorce decree.The attorney argues that the testimony showed that the it was the petitioner's own conduct after the entry of the divorce decree that caused his subsequent financial difficulties rather than his alcoholism, which was extant at the time of the divorce when the petitioner earned significantly more income that he does at the present time. The attorney also argued that the petitioner has the same skills now that he had at the time of the divorce.

This Court does not accept the petitioner's argument that the Support Magistrate acted inappropriately in dismissing his petition. It is well-settled that child support is determined by the parent's assets and ability to provide for the child rather than the parent's current economic situation. (Crosby v. Hickey, 289 AD2d 1013.) Although the loss of employment may constitute a change in circumstances warranting the modification of the child support amount, the moving parent must demonstrate a good-faith effort to obtain employment commensurate with that parent's qualifications and experience. (D'Altilio v. D'Altilio, 14 AD3d 701.) In addition, the New York Court of Appeals has ruled that "... in exercising its discretion whether to modify a child support order, Family Court may consider various factors, including ...whether a supporting parent's claimed financial difficulties are the result of that parent's intentional conduct." (Hickland v. Hickland, 39 NY2d 1.)

The Support Magistrate, who was in the best position to evaluate the facts and circumstances of this case, concluded that the petitioner provided no credible evidence showing that his financial problems are not of his own making or that the petitioner has made every effort to find a better job. The determination of the Support Magistrate, who saw and heard the witnesses, is entitled to great deference on appeal and this Court finds that there was no abuse of discretion in dismissing the petition. (Coniglio v. Coniglio, 295 AD2d509.)

The petitioner is to be commended for recognizing and obtaining treatment for his alcohol abuse problem. However, at trial the petitioner did not meet his legal burden of showing that there has been an unforeseen change of circumstances such that a downward modification of his support obligations is warranted.

Accordingly, the petitioner's Objection is hereby denied.