On May 26, 2011, the attorney for the Petitioner filed Objections to the Findings of Fact and the Order of Dismissal, which were filed and entered on April 27, 2011. An Affidavit of Service was also filed indicating that proper service of the Objections was made on the pro se Respondent. On June 15, 2011, the pro se Respondent filed a Rebuttal to the Objections, which cannot be considered because it was not filed in accordance with the time set in Section 439 of the Family Court Act. In making its determination on the Objections, this Court has reviewed the case file as well as the audiotape of the support hearing below.

As background, on August 4, 1997, the parties were divorced. As part of the Judgment of Divorce the Court ordered Petitioner to pay child support of $355 per week for the two children of the marriage, J. and R. The Judgment of Divorce incorporated, but did not merge the provisions of an Opting Out Agreement made on July 15, 1997. Not long after the parties' divorce, there was subsequent litigation in which the Opting Out Agreement was vacated. As a consequence, on September 17, 2003, the parties entered into an order, which effectively made the order by the Hon. Sandra Townes, JSC, the permanent order with regard to child support.

This proceeding was filed on November 10, 2010 seeking a downward modification on behalf of Petitioner-father (Docket No. 00165-98/10D,E/Family No.: 36517). In relevant part, Petitioner's request for a downward modification was based on a change in circumstances, which primarily related to the child, J., who was alleged to be "emancipated." On January 25, 2011, the Respondent denied these and other allegations in the petition, and cross-petitioned for enforcement of the order of support.

A hearing was held on March 23, 2011 regarding the petition and cross-petition. The Petitioner was personally present and represented by Pamela A. Munson, Esq., and the pro se Respondent was personally present. The court heard testimony from both parties and reserved decision. In her findings, the Support Magistrate found that the child, J., lived with both parents, and that he had earned $12,510 in the 2010 calendar year. The Support Magistrate also found that there was insufficient evidence to find that the child was emancipated.

Based on these findings, the Support Magistrate held that the order of support made on January 22, 2001 and dated February 15, 2011 was continued, and that the Petitioner was directed to pay the sum of $4,557.62 plus interest. This dollar amount was arrived at from the outstanding balance of basic support and the unpaid medical expenses owed by the Petitioner, which represented $3,906.33 and $651.29, respectively [*2]

In the Objection, the attorney for the Petitioner made the following arguments: (1) the judgment enforcing the Support Order was improper because the Petitioner had paid the judgment in full; and (2) the court erred in not granting a downward modification given the alleged status of the child and the economic climate surrounding the local construction industry.

The Support Magistrate properly addressed the first argument put forth in the Objection, as the Petitioner's alleged payments to the Support Collection Unit had not been disbursed to the Respondent at the time of the hearing. Therefore, the Support Magistrate did not err in finding the Petitioner in violation of the support order.

The second argument advanced in the Objection is twofold, and includes: (1) the child's emancipation; and (2) the economic climate surrounding the local construction industry. For purposes of clarity, these two arguments will be dealt with separately.

First, it is well settled that a parent of a minor is responsible for that child's support until age 21. McKinney's Family Ct. Act § 413. Further, it is oft cited that children who are of employable age are emancipated, and parents no longer have an obligation to support them, if the children become economically independent of their parents through employment (Fortunato v. Fortunato, 242 AD2d 720.)While J. is of working age and has been employed in a variety of positions, the record is clear and indicates that the child has relied extensively on both parents for room, board and clothing. This fact is given further support by evidence of the child's 2010 tax return, which indicates that his earnings, while above the poverty level, do not rise to the 2010 self-support reserve level.

Secondly, child support is determined by the parent's ability to provide for the child rather than the parent's current economic situation. (Crosby v. Hickey, 289 AD2d 10113, quoting Zwick v. Kulhan, 226 AD2d 734.) Petitioner's claim that the economic recession has adversely affected his business does not rise to the level of an unanticipated and unreasonable change of circumstances, for two reasons. The first is that Petitioner's "support obligation is not determined by his current financial situation, Orlando v. Orlando, 222 AD2d 906, but rather by his ability to provide support" (Spreitzer v. Spreitzer, 40 AD3d 840.) Secondly, there is nothing in the record to indicate that Petitioner made a good faith effort to obtain employment commensurate with his qualifications and experience (Davis v. Davis, 197 AD2d 622.) This Court did take into consideration statements made by Petitioner's accountant about the importance of continuing the operation of the Petitioner's business despite its current financial difficulties. However, this testimony did not establish that the Petitioner diligently searched for comparable means of earning income (Fowler v. Rivera, 40 AD3d 1093, quoting Barson v. Barson, 32 AD3d 872.)

For all the foregoing reasons, this Court holds that the Support Magistrate did not abuse her discretion, nor did she make any errors of law in her determination of this proceeding.

Accordingly, the Objection is denied, and the decision of the Support Magistrate is affirmed.