Bouchard v. Bouchard, 263 A.D.2d 775 (N.Y. App. Div. 3d Dep't 1999). · Go Syfert
Bouchard v. Bouchard, 263 A.D.2d 775 (N.Y. App. Div. 3d Dep't 1999). Cases Citing This Book View Copy Cite
23 citation events (21 in the last 25 years) across 4 distinct courts.
Treatment trajectory · 2000 → 2026 · click a year to view as-of
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At page 777 Demonstrating lack of reasonable efforts to obtain employment8 citing casestion industry can charitably be characterized as meager. Although he claims to have “reviewed” 150 potential construction jobs in the Plattsburgh area in 1993,…opening of page *777 (no citing court says what it cites this page for)
  • St. Lawrence Cnty. Dep't of Soc. Servs. v. Pratt, 80 A.D.3d 826 (N.Y. App. Div. 3d Dep't 2011).published
    Regarding his claimed inability to pay, upon which he had the burden of proof, his own testimony established that he had failed to make any reasonable efforts to obtain any type of work after his taxi business faltered many months earlier…
  • Zepperi v. Madera, 56 A.D.2d 988 (N.Y. App. Div. 3d Dep't 2008).published
    Because respondent failed to demonstrate that he had made reasonable efforts to meet his child support obligation, he failed to satisfy his burden on the issue of inability to pay (see Matter of Nauman v Rice, 40 AD3d 1159, 1160 [2007]; Ma…
  • Bianchi v. Breakell, 48 A.D.3d 1000 (N.Y. App. Div. 3d Dep't 2008).published
    Having “failed to use his best efforts to obtain a . . . position which would utilize his education and skills” (Matter of Yepes v Fichera, 230 AD2d 803, 804 [1996]; see Hall v Hall, 22 AD3d 979, 981 [2005]; Matter of Bouchard v Bouchard,…
  • Freedman v. Horike, 26 A.D.3d 680 (N.Y. App. Div. 3d Dep't 2006).published
    A child support obligation is not determined solely by a parent’s current financial situation, but by his or her ability to provide support and, in the absence of a good-faith effort to seek reemployment after job loss, modification of the…
  • Carr v. Carr, 19 A.D.3d 839 (N.Y. App. Div. 3d Dep't 2005).published
    A reduction in a payor’s net income, while a primary element of the analysis, does not limit Family Court’s ability to examine the financial circumstances at the time of the prior order and the financial circumstances at the time of the ap…
  • Ellenbogen v. Ellenbogen, 6 A.D.3d 1026 (N.Y. App. Div. 3d Dep't 2004).published 2 cites
    In fact, petitioner, a college graduate, conceded that he has not inquired about employment within or outside this industry to enable him to meet his support obligations (see Beard v Beard, 300 AD2d 268, 269 [2002]; Matter of Bouchard v Bo…
  • Heyn v. Burr, 6 A.D.3d 781 (N.Y. App. Div. 3d Dep't 2004).published 2 cites
    The party seeking to modify a child support order must establish a sufficient change in circumstances warranting the requested downward modification (see Matter of Phelps v La Point, 284 AD2d 605, 609 [2001]; Matter of Bouchard v Bouchard,…
  • Moore v. Blank, 8 A.D.3d 1090 (N.Y. App. Div. 4th Dep't 2004).published
    The Hearing Examiner was in the best position to evaluate respondent’s credibility (see Matter of Hurd v Hurd, 303 AD2d 928 [2003]), and we conclude that the record supports the Hearing Examiner’s determination that respondent failed to me…
At page 776 downward modification of child support, and (2) from an order of said court, entered July 21, 1995, which, inter alia, granted respondent’s application, in a…1 citing caseopening of page *776 (no citing court says what it cites this page for)
  • Broome Cnty. Support Collection Unit v. Corey, 44 A.D.3d 1128 (N.Y. App. Div. 3d Dep't 2007).published
    Under these circumstances and according deference to the Support Magistrate’s assessment of witness credibility, we conclude that respondent failed to meet his burden of demonstrating his inability to meet his support obligations and, thus…
Other citing cases1 with no pin cite or quoted language on record
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In the Matter of Gill Bouchard
v.
Cynthya Bouchard, (And Another Related Proceeding.)
Appellate Division of the Supreme Court of the State of New York.
Jul 22, 1999.
Published opinion
263 A.D.2d 775
1999 N.Y. App. Div. LEXIS 8271
Carpinello.
Cited by 19 opinions  |  Published
Carpinello, J.

Appeals (1) from an order of the Family Court of Albany County (Duggan, J.), entered January 5, 1995, which, inter alia, dismissed petitioner’s application, in a proceeding pursuant to Family Court Act article 4, for a[*776] downward modification of child support, and (2) from an order of said court, entered July 21, 1995, which, inter alia, granted respondent’s application, in a proceeding pursuant to Family Court Act article 4, finding petitioner in willful violation of a prior child support order.

Pursuant to a February 1993 stipulation between the parties, petitioner was obligated to pay respondent $138 per week in child support for their two children and 45% of their child care and medical expenses. The stipulation was thereafter incorporated but not merged into an October 18, 1993 judgment of divorce. Approximately five weeks later, petitioner filed for a downward modification of his child support obligation claiming a decrease in income, namely, that his 1992 wages as an ironworker, upon which the stipulation was based, were inflated with overtime pay and not a realistic gauge of his actual earnings. When petitioner failed to make any child support payments or reimburse respondent for his share of child care and medical expenses after mid-December 1993, respondent commenced a violation proceeding in March 1994. A combined hearing on the petitions ensued. At issue on appeal are orders of Family Court affirming the Hearing Examiner’s finding of willfulness and denial of the application for a downward modification.

Addressing the violation petition first, we note that respondent established her direct case of a willful violation with proof that petitioner failed to pay child support as ordered (see, Family Ct Act § 454 [3] [a]), thereby shifting the burden to him “to offer some competent, credible evidence of his inability to make the required payments” (Matter of Powers v Powers, 86 NY2d 63, 69-70; see, Matter of Nickerson v Bellinger, 258 AD2d 688, 689). There is ample evidentiary support for the finding that petitioner failed to meet this burden.

When questioned about his cessation of child support payments, petitioner cited lack of employment as the reason. According to petitioner’s testimony, he worked approximately 40 weeks in 1992 as an ironworker and earned an annual income of $33,544. In striking contrast, he worked a mere one week in 1993, having voluntarily relocated to the Plattsburgh area in Clinton County from Albany County following marital discord. He testified that he attempted to find ironworking jobs throughout 1993, to no avail. The record reveals, however, that he continuously pursued but one particular position in his field between February 1993 and July 1993, having determined (obviously unrealistically so) that this was the “job for [him]”. His attempts to pursue any other employment in the construe[*777]tion industry can charitably be characterized as meager. Although he claims to have “reviewed” 150 potential construction jobs in the Plattsburgh area in 1993, he admitted that he never actually applied for any of them. Nor did petitioner look for employment outside the construction trade in 1993 or 1994, citing a myriad of conflicting reasons including his unfamiliarity with jobs outside the construction field, his lack of preference for such jobs and because he did not see the need to inquire into other types of employment. Tellingly, he testified that he would rather remain unemployed for one and a half years than obtain nonconstruction-related work.

The record further reveals that petitioner was capable of performing other tasks, such as masonry work, residential woodworking, lawn maintenance, snow removal, vehicle repairs and painting. Nevertheless, he failed to pursue any employment opportunities in these areas. To the contrary, he lived room and board free with his mother throughout 1993 and 1994 and collected unemployment benefits until January 30, 1994. During this time period, she also advanced him approximately $10,000. He finally obtained employment through his father’s newly formed construction company in June 1994 at the rate of $8 per hour. In light of this evidence, which demonstrates a lack reasonable efforts to obtain gainful employment that would have enabled him to meet his child support obligation (see, Matter of Nickerson v Bellinger, supra; Matter of Sutphin v Dorey, 233 AD2d 698, 699; Matter of Shaver v Shaver, 232 AD2d 813, lv denied 89 NY2d 808), petitioner did not satisfy his burden on the issue of inability to pay (see, Matter of Warner v Monroe, 262 AD2d 684; see also, Matter of Powers v Powers, supra, at 69). A finding of willfulness was thoroughly warranted.

We are also satisfied that petitioner failed to meet his burden of showing a change in circumstances sufficient to warrant a downward modification of child support (see, e.g., Matter of Lutsic v Lutsic, 245 AD2d 637, 638; Matter of Davis v Davis, 197 AD2d 622, 623). This obligation “is not necessarily determined by [petitioner’s] existing financial situation but, rather, by his * * * ability to provide support” (Matter of Lutsic v Lutsic, supra, at 638). The record reveals that petitioner had the ability to provide support but made no reasonable efforts to find employment, choosing instead to live off his mother and collect unemployment until it finally ran out. Although petitioner was able to earn a significant salary in 1992 as an ironworker in the Albany area and claims that equivalent opportunities were unavailable when he relocated to Plattsburgh,[*778] we find “ ‘the reversal in [his employment/financial] condition’ ” was brought about by his own actions and inactions such that he did not prove an entitlement to a downward modification of support (Matter of Sutphin v Dorey, supra, at 699, quoting Matter of Doscher v Doscher, 80 AD2d 945, affd 54 NY2d 655).

Petitioner’s remaining contentions, to the extent preserved for our review, are without merit.

Peters, J. P., Spain and Graffeo, JJ., concur. Ordered that the orders are affirmed, without costs.