Defendant moves by way of order to show cause, dated July 11, 2012, for

the court to grant the following: (1) a downward modification of this Courts child support decision dated May 16, 2012 and the judgment of divorce dated July 23, 2012; and (2) adjust the retroactive sums due for child support prior to the entry of the judgment of divorce. On August 14, 2012, plaintiff filed a cross-motion in opposition to defendant's order to show cause, requesting (1) a money judgment against defendant in the amount of $3,006.14 for defendant's failure to comply with the court's decision, dated May 16, 2012, which was incorporated into the judgment of divorce and (2) a money judgment against defendant for any child support arrears which accrue during the pendency of this enforcement proceeding. On October 23, 2012, defendant submitted an affirmation in opposition to plaintiff's cross-motion and in further support of defendant's order to show cause.

The plaintiff commenced this action for divorce on March 23, 2010. The parties resolved all issues of equitable distribution by written agreement, dated October 5, 2010. The parties also resolved custody by a written parenting agreement, dated May 27, 2011, which provides that the mother shall have sole custody of the parties' children. A trial was held on the sole issue of child support on August 8, 2011. The matter was adjourned for written summation and thereafter decision was reserved. This court issued a written decision after trial on May 16, 2012. On July 23, 2012, this court signed the judgment of divorce, which fully incorporates the written decision after trial. The judgment of divorce was entered on July 27, 2012.

On August 8, 2011, a trial was held to determine child support. At the time of the trial, defendant was not regularly employed. The court held that:

"...based on the husband's employment history and

demonstrated past earning ability, coupled with this court's

findings regarding the husband's lack of credibility and

his threats to remain unemployed in order to avoid paying

child support, it is a provident exercise of this court's

discretion to impute income to the husband in the sum

of 55,950.00."

This court, in a extensive decision after considering the credibility of the parties at trial issued on May 16, 2012, imputed income in the sum of $55,950.00, which was the defendant's adjusted gross income on his 2009 federal tax return. The defendant's pro rata share for child support in accordance with the child support standard act is $17,344.50 annually, or $1,445.38 per month. The defendant's pro rata share for statutory add on expenses is 74%, with the plaintiff responsible for the remaining 26%. The expenses include private school tuition, summer camp, extracurricular activities and unreimbursed medical expenses. Applying the child support obligation retroactively, to the date of the first application, this court found the retroactive arrears to be $27,604.50 ^[FN1]. The arrears are to be paid in monthly installments of $200.00 in addition to defendant's monthly obligation, until payment is complete.

Defendant alleges that in November of 2011, defendant began to negotiate with a new potential employer, TAXPRO. He started working for them in early January of 2012. Defendant attached an email from his employer explaining his salary as the following: [*3]

"We would like to revise our offer as the following:

$600.00 per week, cash, will be paid for only first 2 months.

And then for the next following two months, you will

receive $700.00 per week. Since then, $750.00 per week

will be paid. After we reach our goal to have 300 business

accounts, we will gladly accept your offer for $600.00 per

week in cash and $500.00 per week via check."

In addition, defendant is to receive 10% of the company's profits.

Although defendant's first day of work was January 17, 2012, he waited

seven (7) months to inform this court of his employment. His negotiations for employment began in November, shortly after the filing of the written summations for the child support trial. Incredibly, he began his employment with TAXPRO while the trial decision was sub judice and remained so employed for more than five (5) months without notice to anyone.

Defendant now claims his current annual income is $36,400.00. However, defendant's Exhibit B in his order to show cause, which is an email from his employer, TAXPRO, states that after four (4) months of employment defendant will be earning $750.00 per week, or $39,000.00 annually. Further, according to that same exhibit, as soon as his employer reaches its goal of 300 business accounts, defendant's income will increase to a total of $1,100.00 per week, or $57,200.00 annually. This is $1,250.00 more per year than the annual income imputed to him by this Court ^[FN2]. In addition, the exhibit states that defendant is supposed to be receiving 10% of the company's net profits, which amount was not included in his representation of his annual salary.

"Where child support obligations are set by the court in a divorce action and not by stipulation, a court may modify a prior order or judgment as to child support "upon a showing of ... a substantial change in circumstance ... including financial hardship" (Conway v. Conway, 79 AD3d 965, 912 N.Y.S.2d 700, 701 [2 Dept., 2010], citing Domestic Relations Law § 236 [B] [9][b][1]; see Pollack v. Pollack, 3 AD3d 482, 483, 770 N.Y.S.2d 435). "The party seeking modification of a support order has the burden of establishing the existence of a substantial change in circumstances warranting the modification" (Conway v. Conway, 79 AD3d 965, 912 N.Y.S.2d 700, 701 [2 Dept., 2010] quoting Matter of Perrego v. Perrego, 63 AD3d 1072, 1073, 884 N.Y.S.2d 70; see Matter of Nieves—Ford v. Gordon, 47 AD3d 936, 850 N.Y.S.2d 588). Defendant failed to show that there is a substantial change in circumstances from [*4]the time the child support decision was issued, on May 16, 2012. This Court's May 16, 2012 decision states, in part, that " . . . based on trial testimony and the totality of the evidence herein, credits the wife's allegation that the husband has taken measures to decrease his income in order to reduce or avoid his obligations to pay child support. The husband's income for child support purposes shall be $55,950.00." Defendant withheld his new employment from this Court until July 11, 2012, when he filed his order to show cause asking for a downward modification of child support after learning of this Court's decision imputing income. Defendant's application was made a mere two (2) months after this court issued its decision on child support and seven (7) months after the defendant became employed. It appears that defendant withheld information related to his new employment from the court for no less than seven (7) months, while this matter was sub judice, and then brought this application after the Court issued its decision. The Court notes that the present financial arrangement reflects "cash" as a source of income. Under these circumstances, the defendant has not met his burden of a substantial change in circumstances that would warrant a downward modification of child support.

E N T E R:

Hon. Jeffrey S. Sunshine

J. S. C.