R.A.M. v. M.S.M.

DECISION/FINDINGS OF FACT AND ORDER The parties are divorced and have two children in common, A.M. (hereinafter “A.”), born on August 11, 2000 and N.M. (hereinafter “N.”), born on October 30, 2003 (hereinafter “subject children”). On November 1, 2019, the father, R.A.M. (hereinafter “Father” or “Mr. M.”), filed a modification petition against the mother, M.S.M. (hereinafter “Mother” or “Ms. M.”). He sought to reduce his child support obligation. On January 16, 2020, Ms. M. filed a violation petition against Mr. M., alleging that Mr. M. failed to comply with the terms and conditions of the parties’ consent child support order, dated January 29, 2019. Ms. M. requested a willful finding. Despite attempts to settle the matter, a resolution could not be reached, and the case was scheduled for trial. On November 30, 2020, a trial in the matter commenced. The Court heard testimony on November 30, 2020, December 1, 2020, February 2, 2021, February 22, 2021, March 10, 2021, September 1, 2021, November 23, 2021, January 10, 2022, January 11, 2022, February 24, 2022, and March 2, 2022. During the course of the trial, Mr. M. was represented by retained counsel, James Graham, Esq. (hereinafter “Mr. Graham”) and Ms. M. was represented by retained counsel, Steven Seltzer, Esq. (hereinafter “Mr. Seltzer”). Only two witnesses testified: Mr. M. and Ms. M.¹ Several documents were stipulated into evidence; other documents were admitted into evidence. Two documents were admitted as court exhibits. The parties asked the Court to take judicial notice of several documents. After the close of trial, the parties submitted written summations. After having considered the law, the facts, and counsel’s arguments, the Court’s determination is as follows: THE EVIDENCE STIPULATIONS OF FACT The parties entered into the following stipulations of fact: (1) With regards to A.’s offcampus housing, Mr. M.’s ongoing monthly responsibility is $525.00 for the length of the lease; and, (2) Refunds from the University at Albany in the amount of $3,569.60 were returned to Ms. M. who in turn placed them into A.’s bank account. TESTIMONIAL EVIDENCE MR. M.’S TESTIMONY The Court finds worthy of mention that due to a series of unfortunate events, this trial spanned more than two years during which Mr. M.’s testimony was ongoing for most of that time. The Court has done its best to recapitulate and organize his expansive testimony which was updated on each trial date. Mr. M. testified that he has two children with Ms. M., A. and N. He acknowledged that hehas been ordered to pay child support. He told the Court that when the parties’ support order was issued in 2019, he was collecting unemployment benefits, but he is no longer receiving them, his last unemployment check having been issued in March, 2019. He stated that he was making child support payments to Ms. M. from his unemployment benefits. He told the Court that he makes payments to Ms. M. as he is able and he can not afford to pay as ordered. Mr. M. testified that prior to the Court’s 2019 consent order, he was a financial services professional. He told the Court that his Series 7 and Series 63 licenses expired. He elaborated that the last time he used them was in November, 2015. He stated that he was unable to re-certify because after he was let go from his job in the financial services industry, he had no financial entity to sponsor him. Mr. M. testified that after he was laid off, he went to work with his father. He told the Court that his agreement with his father was that if he was able to revitalize his father’s hotel, he would receive half of the profits. He stated that his father failed to live up to his end of the bargain so they had a huge argument and he stopped working for his father. Mr. M. testified that he then enrolled in an online pre-recorded program to keep himself current with financial services data and technological advances. He told the Court that he hoped to become a more desirable candidate for employment within that industry. He stated that he studied, inter alia, quantitative analysis, statistical analysis, programming languages, data science, and real estate financial modeling. Mr. M. testified that he has been making strenuous efforts to obtain employment. He maintained that he has been actively seeking work since he lost his job in the financial services industry. He told the Court that he searches for jobs on company websites and also on employment websites such as ZipRecruiter, LinkedIn, Indeed, and Efinancial Careers. He stated that he has submitted resumes to “hundreds of companies,” including Wells Fargo, J.P. Morgan, and Goldman Sachs. Mr. M. testified that he has received responses from some of the companies to whom he applied, but not all of them. He told the Court that he has reached out to headhunters numerous times during his job search. He stated that unsolicited headhunters have contacted him and he has cooperated with them in the hopes of securing employment. He elaborated that he had numerous phone conversations with recruiters and potential employers and some have led to interviews, but no offer of employment was extended. Mr. M. testified that he pursues all avenues available to him in order to find a job. He explained that since he has experience in the financial field, he initially began looking for any type of employment with financial services companies, such as equity analysis and asset management jobs. He stated that the worldwide COVID-19 pandemic made it increasingly difficult to locate employment in the financial services profession, but he still looked. Mr. M. testified that he is qualified to be an in-house accountant and has previously held high level accounting jobs so he also sought employment as an accountant, including jobs in the area of real estate accounting. He told the Court that he has experience in the hospitality industry as well so he then expanded his search to include jobs working for hotels. Mr. M. testified that he was a music teacher in the 1990′s so he then included music teaching positions and jobs in the music industry to his search for employment. He told the Court that he then added the maritime and retail industries to his job hunt. Mr. M. testified that in 2020 and 2021, he sought employment in the healthcare industry since the pandemic created a need for people in that field. He stated that he applied to a few hospitals, such as St. Francis, Mount Sinai Health Systems, and NYU Langone, for jobs related to financial analysis and planning, but he was not offered any employment. Mr. M. provided details about his quest for employment. Mr. M. testified that in 2019, he applied for investment analyst roles with Voya Financial. He told the Court that he exchanged emails with Voya Financial and had telephone interviews with them, but no offer of employment was extended. Mr. M. testified that in 2019, he applied for an analyst position with Highgate Hotels. He told the Court that he exchanged emails with the company and had telephone conversations with them. He stated that he got an interview and his interviewer suggested that he might be suitable for an Acquisitions Analyst position that was going to be created in 2020. He told the Court that he contacted them on a number of occasions, but he did not hear back from them. Mr. M. testified that in 2019, he applied for a financial risk analyst position at the United Nations in their pension management group. He told the Court that he got some telephone interviews that resulted in a Skype Meeting with a whole team; however, he did not receive an offer of employment. He explained that he had taken a three-part civil service test which involved math, English and decision-making. He stated that he did well on all of the parts, except decision-making. Mr. M. testified that in mid-2019, he applied for a job as a stock analyst/equity analyst at Sidoti & Company. He told the Court that there were some email exchanges with that company and he had an interview in their offices on Sixth Avenue in New York City, but no offer of employment was extended to him. Mr. M. testified that at the end of 2019, he contacted Robert Half, which is a Financial Services Consulting and Placement Firm. He told the Court that he exchanged emails with them and had some telephone conversations with them. He stated that he interviewed in their offices in Nassau County on a number of occasions. Mr. M. testified that they wanted to use him for a role they were hoping to fill for Kimco Realty. He told the Court that he participated in a series of interviews but he did not get the job. Mr. M. testified that at the end of 2019, he interviewed virtually with InTune Analytics for a data analytics position in the entertainment industry. He told the Court that no offer of employment was extended to him. He stated that he also applied for accounting jobs within record companies, including Warner Music, but he was not offered employment. Mr. M. testified that from the end of 2019 into the beginning of 2020, he was in communications with Abacus Group Placement Agency. He told the Court that he applied for an accounting job in a firm, but by that point, the economy “started going backwards” due to the worldwide pandemic and he was not given an interview for that position. Mr. M. testified that in early 2020, he applied for a lodging consultant position with Price Waterhouse Coopers. He elaborated that the job involved going into hotels and “looking at their books” in an effort to make the company more profitable. He told the Court that he had some virtual interviews with them. He explained that it was then that COVID was “hitting” and “we didn’t know how bad it would be.” He stated that he waited to see if he would be offered the position, but that never happened. Mr. M. testified that in 2020, he contacted Trandon Associates, another placement agency. He told the Court that through them, he applied for real estate analyst jobs in Great Neck. He stated that in February or March, 2020, he interviewed for one of the positions in their offices in midtown Manhattan. He explained that he interviewed “before the lockdown.” He stated that as far as he knows, that position was never filled. Mr. M. testified that in mid-2020, he applied to Wafra Inc. for a real estate private equity stock analyst job for which he could have used his experience in both the financial services and hotel industries. He told the Court that he interviewed with them once in south Brooklyn, but no offer of employment was extended to him. Mr. M. testified that in 2020, he applied for jobs in the maritime industry. He told the Court that one such job was at Old Port Marine, which operates in Newport and Block Island, Rhode Island. He stated that he contacted them directly by calling the main office and inquiring if there were any openings. Mr. M. testified that he applied for a job as a launch driver on Block Island. He explained that launch drivers take small vessels out into an anchorage, pick up people, and bring them to shore. He told the Court that when he applied, he did not know that he needed a Captain’s license to be hired. He explained that in order to obtain a Captain’s license, a person has to submit an application and pass several requirements. He told the Court that when he was made aware of such requirement, he began attending classes at the SUNY Maritime College, and studied for, and took examinations with, the New York Coast Guard. Mr. M. testified that around September or October, 2020, he applied to be a cashier at West Marine in Port Washington which was near to where his children were living at the time. He told the Court that he met with the manager in her office. He explained that they extended an offer of employment to him, but the offer was withdrawn through no fault of his own. He told the Court that he submitted resumes for many other retail positions. He gave an example of one such job at Target as a salesperson, but told the Court that he received a rejection letter. Mr. M. testified that around Fall, 2020, he applied for a data analyst position with The Marfan Foundation in Port Washington. He told the Court that around the same time, he also applied to the NPR company for a marketing data science job. Mr. M. testified that in October, 2020, he accepted an offer for a marine services contract position for which he was hired to deliver a yacht. He stated that he was the Helmsman and Deckhand under a Captain who already had his license. He elaborated that he helped take a yacht from Greenport, New York to Tampa, Florida. Mr. M. testified that since October, 2020, he has been employed by Wisdom Academy as a finance instructor. He told the Court that he teaches virtual classes that span ten consecutive days, for an hour each day, and are offered in-between school semesters. He stated that he earns a stipend in the amount of $500.00 monthly. He told the Court that he also receives a $100.00 commission on a per-student basis. He figured that he earns approximately $1,500.00 monthly from teaching. Mr. M. testified that in 2021, he applied directly to Berenberg, a German investment bank. He told the Court that he spoke with their human resources department and had an interview with their managing director of research, but he has not heard back from them. He stated that during that time, he gave one headhunter the right to represent him exclusively in the hopes that he would receive a job offer; however, although the headhunter connected him with HSBC Bank with regards to a financial sales role, he was not offered the position. Mr. M. testified that in September, 2021, he traveled to Newport, Rhode Island to meet with the General Manager for an interview with Old Port Marine. He told the Court that he had finished his “on the water training,” passed all of the required tests, and had his Captain’s License so he was now qualified to work for them. He stated that since Old Port Marine is the Northeast’s largest company of its kind, his hope was to be hired for any of the various jobs that are available through them so that he could gain “valuable time on the water.” He explained that the more time he works on the water, the more qualified he becomes for positions in the maritime field. He stated that his hope is to add experience to his resume and acquire higher level licenses. Mr. M. elaborated that if he continues to work on the water, he will be able to run his own charters, such as lunch cruises, wine and cheese cruises, and tours, which he stated are lucrative. He told the Court that people pay several hundred dollars for these types of charters. He stated that he would also make him more attractive to work for New York Water Taxi, which is a union job with benefits. Mr. M. testified that after several years of searching for employment, it is now apparent to him that financial services firms are looking for applicants with minimal experience so they can pay lower salaries. He explained that he is considered senior in the financial services field, and therefore too expensive. Mr. M. testified that after the pandemic, other challenges to employment with financial services companies were posed. He elaborated that many of those types of companies moved out of New York because they were “hard hit by COVID.” He told the Court that he continues to apply for positions in many fields and has alerts for new positions set up through online job search applications. Mr. M. testified that as of November, 2021, he received a job offer from Sheepshead Bay Yacht Club/Marimar Yacht Club. He told the Court that the job is seasonal and he would begin in April, 2022, earning $18.50 an hour. He stated that the position will be from April through October every year. Mr. M. testified that he told the Sheepshead Bay Yacht Club/Marimar Yacht Club that he would accept the position on a conditional basis because if he was offered a year-round job then he would no longer be able to work for them. Mr. M. testified that his intention is to continue working in his teaching position for an additional income stream. Mr. M. asked the Court to reduce his weekly basic child support obligation to a level with his current earnings potential. Mr. M. testified that in addition to paying child support, he is supposed to contribute towards his son, A.’s, college expenses in proportion to his income. He explained that Ms. M. created a payment plan with SUNY Albany. He told the Court that Ms. M. makes some payments with her credit card and then tells him to pay the balance, which he pays directly to SUNY Albany. He stated that, as a result, he may have overpaid for A.’s college expenses because he pays whatever Ms. M. tells him to pay. He told the Court that even though his income has been “zero dollars” at times, he has consistently paid towards A.’s college costs, including room and board, through his 529 College Savings Plan. He stated that the 529 College Savings Plan is in his name and Ms. M. never contributed funds to the plan. Mr. M. testified that A. does not currently have tuition costs because he is enrolled in the New York State Excelsior program. He told the Court that prior to that time, A.’s tuition was paid through scholarships, loans, and grants. Mr. M. testified that each semester, A.’s dorm room cost $4,391.00 and A.’s meal plan cost $2,550.00. He told the Court that as of Fall, 2021, A. has been living off-campus in an apartment and his ongoing monthly responsibility towards A.’s rent is $525.00. He stated that he paid $2,100.00 when the lease was signed which “cleaned out” his bank account. He stated that his 529 College Saving Plan has also disbursed room and board monies for A.’s rent. He explained that so far, his 529 College Savings Plan has disbursed the funds in two payments, one for $1,016.12 and the other for $763.73. Mr. M. testified that his parents frequently contribute towards A.’s college expenses. He told the Court that his parents have bought clothes for A., rented him a refrigerator and paid for his out of meal plan food, but have never contributed towards A.’s tuition, or his room and board. Mr. M. testified that his son attended in-person college classes during the Spring, 2019 and Fall, 2019 semesters. He told the Court that his son began in-person classes for the Spring, 2020 semester, but had to continue virtually due to the worldwide COVID-19 pandemic. He explained that although he was supposed to receive refunds for the Spring, 2020 semester, the school sent the money directly to Ms. M.. He told the Court that he wants to be credited for the refund that was sent to Ms. M. because it should have been returned to him. He stated that according to the parties’ divorce stipulation, he is entitled to receive a dollar-for-dollar credit for room and board against his child support payments. Mr. M. acknowledged that he owns a used 2004/2005 Hunter 36 boat. He told the Court that he believes that the boat is worth approximately $40,000.00. He stated that he has a loan on the boat through U.S. Bank for which he has to pay $594.00 monthly payments. He explained that the bank has a primary lien for the mortgage which is held as collateral for the loan he took to pay for it. He stated that as of November 18, 2020, he had an outstanding balance due in the amount of $39,247.12. Mr. M. testified that he is behind on his payments, and the bank has given him at least one forbearance. He told the Court that he has borrowed over $50,000.00 from his mother to make some payments and his mother has a lien on the boat. He stated that his wife has also made some payments on his behalf so that the bank does not foreclose on the boat. He told the Court that he docks the boat in Manhasset Bay Marina near Port Washington. He stated that he owes Manhasset Bay Marina approximately $10,000.00 and they have also put a lien on his boat. He told the Court that he has not sold his boat because he anticipates using the boat to earn income now that he has acquired a Captain’s license. Mr. M. acknowledged that he owns a 2010 Toyota Prius. He told the Court that he stores the car in a parking lot because he can not afford to pay the insurance for it. He stated that he believes that the car is worth approximately $7,225.00. Mr. M. testified that the title to the car is in his name and he owns the vehicle “free and clear.” He told the Court that he has not used the car for at least a year, but he starts it up now and again to make sure that it is working. He admitted that he has made no efforts to sell the vehicle because A. has expressed an interest in taking ownership of it. Mr. M. testified that he has been supporting himself by using credit cards and borrowing money from his mother and her husband. He told the Court that his credit cards are “maxed out” and he makes the minimum monthly payments on them. Mr. M. testified that he is married to A.Z. He told the Court that they live together in Stuyvesant Town in an apartment his wife occupied before their marriage for which she pays $3,700.00 in monthly rent. He elaborated that utilities are included in the rent. Mr. M. testified that during the pendency of the instant trial both he and his wife were out of work, but his wife has since returned to her job. He told the Court that his wife earns approximately $50,000.00 annually, creating content for an Online Education Company, and working with a not-for-profit coffee club. Mr. M. testified that in addition to paying their rent, his wife also pays for their other necessities through her credit card. He told the Court that he pays for his cellular telephone as well as his wife’s and children’s cellular telephones. Mr. M. testified that he and his wife have separate bank accounts. He told the Court that his wife’s salary goes into her account. He stated that he has never contributed to his wife’s account, but he “probably withdrew” money from hers. Mr. M. testified that he is on Medicaid. He told the Court that he owes the Internal Revenue Service approximately $30,000.00. MS. M.’S TESTIMONY Ms. M. testified that she used to reside in Port Washington with her two children. She told the Court that when A. went to college in Albany, she continued to live in Port Washington with N. She stated that as of August 15, 2021, she moved to Mineola because she could no longer afford to live in Port Washington. She told the Court that both of her children now live away from home while attending college. Ms. M. testified that her expenses include rent in the amount of $2,395.00 monthly, utilities in the amount of approximately $350.00 monthly, $70.00 monthly for cable and internet, $137.00 monthly for car insurance, gasoline in the amount of $300.00 monthly, employee parking in the amount of approximately $20.00 daily, car attendant tips in the amount of approximately $3.00 daily, and a car payment in the amount of $267.00 monthly. She stated that she had to open a few credit card accounts in order to make ends meet. Ms. M. testified that she used to work at the W Hotel as a cocktail waitress, earning approximately $1,000.00 a week. She told the Court that her salary and tips are set forth on her W Hotel W-2. She explained that all employees were required to pool their cash and credit card tips, and give them to their union delegate. She stated that she paid taxes on her tips. Ms. M. testified that in mid-March, 2020, the worldwide COVID-19 pandemic became an issue for her employment. She explained that people were quarantining and the hotel business was not doing well. Ms. M. testified that she was temporarily laid off from the W Hotel in mid-March, 2020. She told the Court that the W Hotel ultimately closed and she was officially terminated as of October 27, 2020. Ms. M. testified that when she was laid off from the W Hotel the first time and had no salary, she applied for unemployment and received benefits in the approximate amount of $600.00 weekly and Federal stimulus payments in the amount of $300.00 weekly. She stated that her benefits were supposed to stop on November 22, 2020, but she filed for an extension to receive additional monies. Ms. M. testified that on October 13, 2021, when her unemployment and stimulus payments ceased, she was able to acquire a job at The Plaza Hotel as a cocktail waitress. She told the Court she serves cocktails and light fare. She stated that when she was hired, it was a seasonal job for three months’ time and she was earning $15.06 hourly plus tips. She elaborated that in October, 2021, she worked three days a week, in November, 2021 and December, 2021, she worked five days a week, and in January, 2022, she worked three days a week. She told the Court that just as with her employment at the W Hotel, all tips are reported to The Plaza Hotel and taxes are paid on them. Ms. M. testified that she earns an average of $70.00 per day in tips. She told the Court that during December, 2021, she worked extra days and earned anywhere between $1,100.00 weekly and $1,800.00 weekly. She stated that there were some holidays where she earned an exceptional amount of money in tips, citing Christmas Day during which she earned $800.00 and New Year’s Eve during which she earned $2,500.00. She told the Court that The Plaza hotel has kept her beyond the holiday season. Ms. M. testified that after each holiday season, the hotel business is slow for a few months until the warmer weather arrives. She explained that her tips vary depending on how busy the hotel is. She elaborated that during the colder months of January, February and March, her tip income is lower because there is no traffic at the hotel. Ms. M. testified that she hopes that someone quits so that she can be hired for full-time work at The Plaza hotel. She told the Court that she is at the bottom of the seniority list, but she hopes they will keep her. She stated that she belongs to Local 6, which union covers insurance for her and her children through Blue Cross/Blue Shield. Ms. M. testified that the parties’ daughter, N., is a Freshman at a college in Indiana. She told the Court that she gives N. spending money while she is away at school. She stated that since September, 2021, she gave N. approximately $5,000.00. Ms. M. testified that neither parent has been paying towards N.’s room and board. She told the Court that N. acquired $6,000.00 in loans and Mr. M.’s father contributed “a lot” to N.’s college expenses. Ms. M. testified that the parties’ son, A., attends the University at Albany and he is in his senior year. She told the Court that when A.’s college bills arrive, she figures out what she should pay and what Mr. M. should pay. She stated that each semester she communicates with Mr. M. in some fashion so that she can tell him what to pay. Ms. M. testified that she and Mr. M. have been paying A.’s college expenses directly to the college. She told the Court that all of payments that Mr. M. made towards A.’s colleges expenses are reflected as College Saves Payments on A.’s University of Albany Student Account sheet and all of her payments are reflected as E-Mastercard Payments. Ms. M. testified that as of Fall, 2019, A. was enrolled in the New York State Excelsior program so his tuition was paid by New York State. She told the Court that when A.’s college closed due to the worldwide COVID-19 pandemic, he lived with her for approximately eighteen months. She stated that when A. went back to school in August, 2021, she gave him $500.00 in spending money. Ms. M. testified that since January, 2019, just after the parties entered into their consent agreement, Mr. M. failed to pay in a timely and consistent way. She stated that although Mr. M. has made child support payments, there was a long time period during which Mr. M. did not pay child support at all. She elaborated that for the time period between February, 2019 through March, 2022, Mr. M. owes her approximately $51,000.00 in child support arrears. Ms. M. acknowledged that Mr. M. is entitled to a room and board credit against his child support obligation pursuant to the parties’ divorce documents. She told the Court that she contacted A.’s college and figured out that payments made towards room and board equal 58.4 percent of A.’s total college expenses. She stated that for Spring, 2019, and Fall, 2019, Mr. M. is entitled to a credit for 58.4 percent of what he paid towards A.’s college expenses. Ms. M. testified that for Spring, 2020, Mr. M. is entitled to a credit of $3,569.60 because when A.’s college closed due to COVID-19, she received a room and board refund which she put into A.’s bank account. She explained that the refund was money that Mr. M. paid so it should have been returned to him. She told the Court that A. lived with her and went to college online from March, 2020 until August, 2021. She stated that Mr. M. is not entitled to a credit for room and board while A. was living with her. Ms. M. testified that A. went back to school for the Fall, 2021 semester and chose to live off-campus with his friends. She stated that since August, 2021, Mr. M. is entitled to a credit in the amount of $525.00 monthly which is his contribution towards A.’s off-campus housing. DOCUMENTARY EVIDENCE Mr. M. admitted his Mandatory Financial Disclosure Packet, including his Financial Disclosure Affidavit, dated November 25, 2020, his November 6, 2020 pay stub from Wisdom Academy LLC, his 2019 Tax Return, his 2018 W-2, his 2017 Tax Return, a letter from his JetBlue Rewards Card, dated October 21, 2019, a J.D. Power 2010 Toyota Prius Value Quote, and his US Bank Loan Statement, dated December 13, 2019, into evidence as Petitioner’s Exhibit 1. Mr. M. admitted his New York 529 College Saving Plan transaction documents for the years 2018, 2019, and 2020 into evidence as Petitioner’s Exhibit 2. Mr. M. admitted his son, A.’s, University at Albany, State of New York, Student Account Activity for Fall 2018, Spring 2019, Fall 2019, Spring 2020, and Fall 2020 into evidence as Petitioner’s Exhibit 3. Mr. M. admitted a collection letter from U.S. Bank, dated November 18, 2020 into evidence as Petitioner’s Exhibit 4. Mr. M. admitted his son, A.’s, updated University at Albany, State of New York, Student Account Activity through Fall, 2021, into evidence as Petitioner’s Exhibit 5. Mr. M. admitted a copy of two money orders totaling $800.00 towards child support, into evidence as Petitioner’s Exhibit 6. Mr. M. admitted a New York Residential Lease Agreement, dated June 5, 2021, for the parties’ son A., into evidence as Petitioner’s Exhibit 7. Mr. M. admitted a cancelled check, #776, payable to Albany Student Housing, dated August 10, 2021, in the amount of $2,100.00 into evidence as Petitioner’s Exhibit 8. Mr. M. admitted his New York 529 College Saving Plan transaction documents, dated December 31, 2021, into evidence as Petitioner’s Exhibit 9. Ms. M. admitted her Financial Disclosure Affidavit, dated January 8, 2020, into evidence as Respondent’s Exhibit A. Ms. M. admitted the parties’ Nassau County Office of Child Support Enforcement Support Obligation Summary, dated November 30, 2020, into evidence as Respondent’s Exhibit C. Ms. M. admitted her Termination Notice from the W Hotel, dated October 27, 2020, into evidence as Respondent’s Exhibit D. M. admitted her New York State Department of Labor, Official Record of Benefit Payment History, dated November 25, 2020, into evidence as Respondent’s Exhibit E. Ms. M. admitted her 2019 Tax Return, into evidence as Respondent’s Exhibit F. Ms. M. admitted his son, A.’s, University at Albany, State of New York, Student Account Activity for Fall 2018, Spring 2019, Fall 2019, Winter, 2020, Spring 2020, Summer, 2020, Fall 2020, Winter, 2021, Spring, 2021, Summer, 2021 and Fall 2021 into evidence as Petitioner’s Exhibit G. The parties’ Nassau County Office of Child Support Enforcement Support Obligation Summary, dated November 19, 2021, was admitted into evidence as the Court’s Exhibit 1. Ms. M.’s enforcement petition, dated January 16, 2019, was admitted into evidence as the Court’s Exhibit 2. As requested by the parties, the Court took judicial notice of the following documents: (1) the parties’ Judgment of Divorce, dated September 9, 2011, issued by the Honorable Edward A. Maron in Nassau Supreme Court, under Index No. 203696-06; (2) the parties’ Stipulation of Settlement agreement, dated February 2, 2011; and, (3) the parties’ Order of Support On Consent, dated January 29, 2019, issued by this Court under Docket No. F-08827-18. DISCUSSION MR. M.’S DOWNWARD MODIFICATION PETITION A family court has the authority to modify child support orders on grounds set forth within the New York State Family Court Act (hereinafter “FCA”). See N.Y. FAM. CT. ACT §451 (McKinney’s 2022). Prior to the effective date of the 2010 amendments to FCA §451, the Family Court could modify an existing child support order upon a showing of a substantial change in circumstances. See id.; see also Funaro v. Kudrick, 128 A.D.3d 695, 696 (2d Dep’t 2015); see also Radday v. McLoughlin, 106 A.D.3d 1015, 1015-16 (2d Dep’t 2013); see also Kasun v. Peluo, 82 A.D.3d 769, 771 (2d Dep’t 2011); Ish-Shalom v. Wittman, 81 A.D.3d 648, 648 (2d Dep’t 2011); Aranova v. Aranova, 77 A.D.3d 740, 40 (2d Dep’t 2010). In making a determination regarding whether or not a change in circumstances meriting a modification had occurred, a court could consider the following factors: (1) the children’s increased needs; (2) any cost of living increase if it creates greater expenses for the children, (3) a parent’s loss of income or assets; (4) a substantial improvement in a parent’s financial situation; and, (5) the children’s current and prior lifestyles. See Baumgardner v. Baumgardner, 126 A.D.3d 895, 896-97 (2d Dep’t 2015); see also Fantel v. Stamatatos, 59 A.D.3d 717, 717-18 (2d Dep’t 2009). The 2010 FCA §451 amendments added additional criteria from which a family court could modify child support orders.² Those criteria are the following: (1) three years passed since the order was last entered, modified or adjusted; or, (2) either party’s gross income changed by fifteen per cent or more since the order was last entered, modified or adjusted; or, (3) a party’s gross income reduced due to employment termination through no fault of their own and that party made a good faith effort to find a new job corresponding to his or her qualifications, education, and experience. See N.Y. FAM. CT. ACT §451 (McKinney’s 2022). The parties’ consent support order was issued on January 29, 2019. Accordingly, the 2010 amendments apply. The evidence established that on January 29, 2019, the parties entered into a consent child support order in which Mr. M. was directed to pay $267.00 weekly from January 28, 2019 to July 28, 2019 and thereafter was directed to pay $436.00 weekly. See Order of Support On Consent (Mendelson-Toscano, 01/29/2019), Nassau County Family Court Docket Number F-08827-18. That order directed Ms. M. to continue to cover the children under her health insurance and Mr. M. to pay 75 percent of the children’s unreimbursed medical expenses. See id. The proof showed that since the parties’ 2019 order was issued, Mr. M. has been diligently searching for jobs commensurate with his background and experience. In fact, the proof showed that since Mr. M. has education and experience in several fields, he tried to find employment in, inter alia, the financial services, accounting, entertainment, healthcare, teaching, and maritime industries. The proof also showed that Mr. M. took courses to keep himself updated on data and technological advances within the financial services field as well as other fields to improve his chances of becoming gainfully employed. The proof further showed that Mr. M. was able to acquire an online financial teaching position and a job as a boat captain. Although Mr. M. failed to provide documentary proof regarding his job search, the Court finds Mr. M.’s testimony about such search to be forthright and credible. Mr. M. testified multiple times over the course of several years. On each trial date while he was on the stand being questioned by Mr. Seltzer, Esq., he was required to testify about his past and present attempts to find employment. On each occasion, Mr. M. remembered the details of his past undertaking with great clarity despite the passing of time. The relevant time period for the purposes of determining Mr. M.’s modification application is the time frame between when the order sought to be modified was issued and the filing of his petition. See Tomassi v. Suffolk Cty. Dep’t of Soc. Servs., 144 A.D.3d 930, 931 (2d Dep’t 2016) (“[T]he change is measured by comparing the payor’s financial situation at the time of the application with that at the time of the order sought to be modified.”); see also Saraguard v. Saraguard, 125 A.D.3d 982, 983 (2d Dep’t 2015) (same); Kasun v. Peluso, 82 A.D.3d 769, 771 (2d Dep’t 2011). The evidence established that as of January 29, 2019, when the parties’ order was issued, the parties agreed that Mr. M.’s anticipated income was considered to be $98,300.00. See Findings of Fact, p. 3 (Mendelson-Toscano, 01/29/2019), Nassau County Family Court Docket Number F-08827-18. The Court now imputes Mr. M.’s income to be $56,480.00 annually based upon his teaching and boat captain salaries.³ The Court finds such income to be his ability to earn retroactive to November 1, 2019, his petition’s filing date. Thus, the Court finds that Mr. M. has satisfied his burden of proving that a substantial change in circumstances has occurred; to wit, he is experiencing a financial hardship since his income has decreased by more than 15 percent since the entry of the parties’ 2019 order. There is no doubt in this Court’s mind, based upon the evidence presented, that Mr. M. has a legitimate inability to pay his child support obligation as set forth within the parties’ 2019 order.⁴                          In order to recalculate the parties’ consent order under the Child Support Standards Act, the Court now turns to the question of what Ms. M.’s income is determined to be. The evidence established that Ms. M. was earning approximately $50,000.00⁵ annually as a cocktail waitress at the W Hotel until the worldwide COVID-19 pandemic decimated the hotel industry. The evidence also established that Ms. M. was earning approximately $46,800.00⁶ annually in unemployment benefits and stimulus benefits while she was unemployed. The evidence further showed that when her benefits ceased, she was able to find employment at The Plaza hotel where she earns $15.06 per hour and approximately $70.00 daily in tips. Thus, in light of proof presented, the Court imputes Ms. M.’s ability to earn to be $49,524.80 annually; to wit, $15.06 per hour for a forty hour work week times 52 weeks equals a $31,324.80 salary, plus $70.00 daily for five workdays times 52 weeks equals $18,200.00 in tips, for a total of $49,524.80 annually. Given that Ms. M. testified that she spends approximately $300.00 monthly in gasoline, $20.00 daily in employee parking costs and $3.00 daily in car attendant tips, it would be counterintuitive to believe that her commute from Long Island to her New York City job would be otherwise worthwhile. Since Mr. M.’s imputed salary is $56,480.00 annually and Ms. M.’s income is imputed to be $49,524.80 annually, the Court now uses those figures in its child support computation as follows: The parties’ combined gross income is $106,004.80 annually. The total amount of deductions for both parties for Social Security and Medicare is $8,109.37 annually. The parties’ combined adjusted gross income is $97,895.43 annually. The statutory child support percentage for two children is 25 percent of the combined parental income. See N.Y. FAM. CT. ACT §413(1)(b)(3)(ii) (McKinney’s 2022). 25 percent of $97,895.43 yields a $24,473.86 per year child support obligation, or a $470.65 weekly child support obligation for both parents. Based upon the income information provided, Ms. M.’s pro rata share of the basic child support obligation is 47 percent and Mr. M.’s pro rata share of the basic child support obligation is 53 percent. Since Mr. M.’s pro rata share of the basic child support obligation is 53 percent, his child support obligation is $249.45 weekly, retroactive to November 1, 2019, his petition’s filing date. ORDERED that, Mr. M. shall pay $249.45 weekly towards the support of his two children, A. and N., through the Support Collection Unit, effective March 7, 2022.⁷ Mr. M.’s pro rata share of the basic child support obligation shall be 53 percent and Ms. M.’s pro rata share of the basic child support obligation shall be 47 percent. Ms. M. shall continue to cover the children under her health insurance through her union. MS. M.’S ENFORCEMENT PETITION Where a party seeks to enforce the provisions of their child support order by filing a violation petition, it is the Petitioner’s burden to go forward, and such burden must be met through competent proof. See Powers v. Powers, 86 N.Y.2d 63, 68 (1995) (in appeal from violation hearing, “[p]etitioner agrees that the burden of proof is hers to sustain.”). New York State Family Court Act §437 provides that for the purposes of a violation hearing, a respondent is prima facie presumed to have sufficient means to pay child support. See N.Y. FAM. CT. ACT §437 (McKinney’s 2022). Moreover, New York State Family Court §454(3)(a) dictates that failure to pay child support as ordered constitutes prima facie evidence that a support order has been willfully violated. See N.Y. FAM. CT. ACT §454(3)(a) (McKinney’s 2022); see also Tamborello v. Tamborello, 181 A.D.3d 609, 610 (2d Dep’t 2020); Gorsky v. Kessler, 79 A.D.3d 746, 746 (2d Dep’t 2010). Under Powers v. Powers, 86 N.Y.2d 63 (1995) and its progeny, the burden then shifts to the respondent to demonstrate, through competent, credible evidence, that he or she could not, or should not, pay. See Powers, 86 N.Y.2d at 68-70; see also Cameron v. King, 160 A.D.3d 945, 946-47 (2d Dep’t 2018); Sullivan v. Kilkenny, 141 A.D.3d 533, 534 (2d Dep’t 2016); Barrett v. Barrett, 82 A.D.3d 974, 975-76 (2d Dep’t 2011); Maldonado v. Maldonado, 74 A.D.3d 971, 971-72 (2d Dep’t 2010); Rube v. Tornheim, 67 A.D.3d 916, 916-17 (2d Dep’t 2009). As an initial matter, Ms. M. hand-dated her petition with January 16, 2019 when the parties’ child support order was not entered until January 29, 2019. Such argument was not raised during the pendency of the proceedings and the trial in the matter has concluded. In light of such, coupled with Ms. M.’s filing of her petition on January 16, 2020, the Court shall consider her error to be a “‘technical infirmity’” to be overlooked and will decide her petition on the merits. E.g. Ruffin v. Lion Corp., 15 N.Y.3d 578, 582-83 (2010) (holding that defect in service could be disregarded under CPLR §2001); Young v. City of N.Y., 164 A.D.3d 711, 712-13 (2d Dep’t 2018) (where scanning error occurred in clerk’s office, omitting return date page of digital order to show cause, and plaintiffs unintentionally served such copy, finding defect was “merely technical”); Kennedy v. N.Y.S. Off. for People with Dev. Disabilities, 154 A.D.3d 1346, 1347 (4th Dep’t 2017) (finding notice, lacking return date, was “technical defect” to be corrected or disregarded); Mazzarelli v. 54 Plus Realty Corp., 54 A.D.3d 1008, 1008 (2d Dep’t 2008) (affirming Supreme Court’s disregard under CPLR §2001 of omission of deposition transcript signature page from motion papers). The Court credits Ms. M.’s testimony that Mr. M. failed to pay upon the parties’ 2019 order in a timely and consistent fashion. However, Ms. M. did not testify about the amount of arrears that she claimed were due and owing as set forth within her petition, but rather about what was due and owing on the days she testified. Such testimony flies in the face of her New York State Family Court Act §459 obligation to provide written notice of her intention to include additional arrears at the trial. See N.Y. FAM. CT. ACT §459 (McKinney’s 2022). Mr. M. timely filed his downward modification petition seeking relief from the parties’ 2019 order. The evidence established that Mr. M. is entitled to a decreased child support obligation as of his petition’s filing date. The evidence also established that he is entitled to receive credit for any payments he made through the Support Collection Unit during the relevant time period as well as a dollar-for-dollar credit for amounts he paid towards A.’s room and board during that time. The proof showed that for the period between January 29, 2019 and March 3, 2022, Mr. M. owed child support as follows: For the time period between January 29, 2019 and July 28, 2019, Mr. M. was obligated to pay $267.00 weekly for a total of $6,942.00 for those 26 weeks. For the time period between July 29, 2019 and November 1, 2019, Mr. M. was obligated to pay $436.00 weekly for a total of $6,104.00 for those 14 weeks. For the time period between November 1, 2019⁸ and March 3, 2022,⁹ the Court determined that Mr. M.’s obligation should be downwardly modified to be $249.45 weekly. During those 122 weeks, Mr. M.’s $249.45 weekly obligation totals $30,432.90. $6,942.00 plus $6,104.00 plus $30,432.90 calculates to be $43,478.90 in child support arrears. The proof also showed that Mr. M.’s dollar-for-dollar credit for payments he made towards A.’s room and board is as follows:¹⁰ For the Spring, 2019 semester, Mr. M. made payments towards A.’s room and board in the amount of $2,999.71.¹¹ For the Fall, 2019 semester, Mr. M. made payments towards A.’s room and board in the amount of $2,393.93.¹² For the Spring, 2020 semester, the parties stipulated that Mr. M. is entitled to a credit against his child support obligation in the amount of $3,569.60 for room and board payments he made which were refunded to Ms. M.. For the Fall, 2021 semester, Mr. M. made a $2,100.00 payment by way of a check toward A.’s offcampus housing. During the Fall, 2021 semester, Mr. M. made two payments in the amounts of $1,016.12 and $763.73, through his 529 College Savings Plan, to University at Albany student housing towards A.’s off-campus apartment. Mr. M.’s total credits allowable for payments he made towards A.’s room and board during the relevant time period are $12,843.09.¹³ Such calculation does not violate firmly established Second Department law which sets forth that a non-custodial parent is entitled to a room and board credit against that parent’s child support obligation only as to the particular child in college. See Levy v. Levy, 52 A.D.3d 717, 719 (2d Dep’t 2008); see also Lee v. Lee, 18 A.D.3d 508, 512 (2d Dep’t 2005). Inasmuch as Mr. M.’ child support responsibility from January 29, 2019 until March 3, 2022 is $43,478.90, his room and board credit is $12,843.09, and his child support obligation to his eldest child, A., is 17 percent,¹⁴ Mr. M.’s credit does not exceed the amount of child support owed to A.¹⁵ Thus, N.’s portion of child support remains untouched. The proof further showed that Mr. M.’s credit for payments he made through the Support Collection Unit during the relevant time period is as follows: From February 10, 2020 through October 28, 2020, Mr. M. made child support payments in the amount of $3,000.00. From November 2, 2020 through November 9, 2021, Mr. M. made child support payments in the amount of $9,065.00. Mr. M.’s total credits allowable for payments he made towards his child support obligation during the relevant time period are $12,065.00. Mr. M.’s child support arrears between January 29, 2019 and March 3, 2022 being $43,478.90, less $12,843.09¹⁶ and $12,065.00¹⁷ for a total of $24,908.09 in credits, equals $18,570.81 in child support arrears that remain due and owing to Ms. M. for the relevant time period. Since the Court has found that Mr. M. was unable to pay child support as ordered because his anticipated income was something he was unable to successfully materialize and Mr. M. made child support payments as well as payments towards A.’s room and board during the relevant time period, the Court finds that Mr. M. non-willfully failed to pay child support as ordered. After a violation is found, a Support Magistrate has broad discretion as to the appropriate sanction to impose. See Cameron, 160 A.D.3d at 947; see also Sullivan, 141 A.D.3d at 535. The Court may, inter alia, enter a money judgment, make an income deduction order for support enforcement, and suspend a respondent’s driver’s, professional, business or recreational licenses. See N.Y. FAM. CT. ACT §454 et al. (McKinney’s 2022). In light of the Court’s determination that Mr. M. non-willfully failed to pay child support as ordered, the Court finds the appropriate disposition to be a money judgment in the amount of $18,570.81 for child support arrears owed, to be administrated through the Support Collection Unit. ORDERED that, pursuant to New York State Family Court Act §454(2)(a), a money judgment in the amount of $18,570.81, plus costs and interest, shall be entered against Mr. M. and in favor of Ms. M. for child support arrears, to be administrated through the Support Collection Unit. ATTORNEYS FEES In all support matters, at any stage of the proceedings, a court may grant attorneys fees pursuant to New York State Family Court Act §438(a). See N.Y. FAM. CT. ACT §438(a) (McKinney’s 2022); see also Matter of Anna Y. v. A.ander S., 142 A.D.3d 864, 864 (2d Dep’t 2016). Such an award is left to the sound discretion of the court. See Matter of Felix v. Felix, 110 A.D.3d 805, 805 (2d Dep’t 2013). The factors to be considered when calculating an appropriate award include “‘the parties’ ability to pay, the merits of the parties’ positions, the nature and extent of the services rendered, the complexity of the issues involved, and the reasonableness of counsel’s performance and the fees under the circumstances.’” Roberts v. Roberts, 176A.D.3d 1226, 1228 (2d Dep’t 2019); see also Felix, 110 A.D.3d at 805 (citing cases). The Court finds an order directing Mr. M. to pay Ms. M. for reasonable counsel fees associated with the trial is necessary and appropriate. The parties’ 2019 order acknowledged Mr. M.’s room and board credit as against his child support obligation and ordered that he pursue such by way of a motion each time he sought relief. Mr. M. failed to comply with such condition precedent. The Court presumes that had Mr. M. timely filed for relief in that regard, such may have led to a resolution and obviated the need for at least one of the instant petitions to be filed and its concomitant trial to be had. It is clear to the Court that Mr. Seltzer expended extraordinary effort towards his representation of Ms. M. The trial of the matter required extensive preparation, lasted two and a half years’ time, and was comprised of extensive testimony and voluminous documents. There was merit to Ms. M.’s petition since Mr. M. has been found to owe child support arrears even after all of his credits and the Court’s granting of his downward modification petition. The trial was complex in nature given the many issues in dispute, some of which required vexing mathematical computations. For all of those reasons, the Court finds reasonable compensation towards Ms. M.’s attorneys fees to be $20,000.00. ORDERED that, pursuant to New York State Family Court Act §§438(a), Mr. M. shall pay $20,000.00 towards Ms. M.’s reasonable counsel fees for Mr. Seltzer’s representation of her in connection with the trial. Such shall be paid within 120 days after the issuance of the Court’s order. This constitutes the decision, opinion, and order of the Court. Dated: March 28, 2022