IN THE MATTER OF JASON M. GRATTON,PETITIONER-APPELLANT,V KATHERINE C. GRATTON, RESPONDENT-RESPONDENT.MULDOON, GETZ & RESTON, ROCHESTER (GARY MULDOON OF COUNSEL), FORPETITIONER-APPELLANT.UNDERBERG & KESSLER LLP, ROCHESTER (LEAH T. CINTINEO OF COUNSEL), FORRESPONDENT-RESPONDENT.Appeal from an order of the Family Court, Wayne County (RichardM. Healy, J.), dated March 24, 2017 in a proceeding pursuant to FamilyCourt Act article 4. The order affirmed the determination of theSupport Magistrate.It is hereby ORDERED that the order so appealed from isunanimously affirmed without costs.Memorandum: In this child support modification proceedingpursuant to Family Court Act article 4, petitioner father appeals froman order denying his objection to an order of the Support Magistratethat dismissed his petition with prejudice. The father sought adownward modification of his child support obligation as set forth inthe parties’ April 2016 settlement agreement that was incorporated butnot merged into the August 2016 judgment of divorce. The SupportMagistrate dismissed the father’s petition on the ground that hefailed to establish a substantial change in circumstances since theentry of the judgment on August 30, 2016. In addition, although theSupport Magistrate implicitly found that the father’s income haddecreased by more than 15%, the Support Magistrate determined that thefather’s reduction in income was due to a self-created hardship andthus was not “involuntary” (Family Ct Act § 451 [3] [b] [ii]). Weconclude that Family Court properly denied the father’s objection tothe Support Magistrate’s order.We reject the father’s contention that the Support Magistrate andthe court both failed to apply Family Court Act § 451 (3) (b) (ii),and we conclude that he was not entitled to relief under that statute.“[S]ection 451 ofthe Family Court Act allows a court to modify anorder of child support, without requiring a party to allege ordemonstrate a substantial change in circumstances” (Matter of Harrisonv Harrison, 148 AD3d 1630, 1632 [4th Dept 2017] [internal quotationmarks omitted]), where, inter alia, “there has been a change in eitherparty’s gross income by fifteen percent or more since the order wasentered, last modified, or adjusted” (§ 451 [3] [b] [ii]). Althoughthe father’s income decreased by more than 15% after he was laid offfrom his job as a nuclear power plant contractor in May 2016, wenevertheless conclude that he failed to establish his entitlement torelief under the statute because the change did not occur since thetime that the judgment was entered in August 2016. In any event, thefather also failed to establish that his reduced income wasinvoluntary. The record demonstrates that the father had no intentionof returning to his occupation and made minimal efforts “to secureemployment commensurate with his . . . education, ability, andexperience” as required under Family Court Act § 451 (3) (b) (ii).Instead, the father intended to work on the family farm, despite thefact that it was not profitable for him to do so.Similarly, to support a request for a downward modification underthe nonstatutory change in circumstances standard, which must be “‘substantial, unanticipated and unreasonable,’ ” the change incircumstances must have occurred in “the period between the issuanceof the [relevant] order and the filing of the [modification] petition”(Matter of Brink v Brink, 147 AD3d 1443, 1444 [4th Dept 2017];seeMatter of Boden v Boden,42 NY2d 210, 213 [1977]). Here, the changein circumstances, i.e., the father’s layoff, occurred in May 2016 but,as noted, the judgment of divorce was not entered until August 2016.Thus, the change that formed the basis for the father’s request for adownward modification occurred prior to the entry of the relevantorder. We further note in any event that the nature of the father’scontract work was intermittent, and the change was not unanticipatedinasmuch as he testified that he worked during outages, which occurredevery spring or fall depending on the refueling cycle of the nuclearplant. We therefore conclude that the father also failed to establishhis entitlement to a downward modification of child support under thenonstatutory change in circumstances standard (see Matter of Gray vGray, 52 AD3d 1287, 1288 [4th Dept 2008],lv denied11 NY3d 706[2008]).Entered: June 8, 2018 Mark W. BennettClerk of the Court
