Summary
The Appellate Division, Third Department, reviewed the dismissal of a mother's petition to modify a prior child support order upward. The court agreed that she failed to make a prima facie showing of a substantial change in circumstances or qualifying income change, but held that the petition should have been dismissed without prejudice because Family Court retains continuing jurisdiction to modify child support upon a proper showing.
Topics
Practice areas
Questions Presented
- Whether the mother made a prima facie showing of a substantial change in circumstances or a qualifying change in gross income warranting an upward modification of child support.
- Whether Family Court could dismiss the mother's child-support-modification petition with prejudice after finding that she failed to establish entitlement to modification.
Holdings
- The mother failed to make a prima facie showing that an upward modification of child support was warranted because the record did not adequately establish either the financial circumstances underlying the prior support order or the father's current ability to provide support.
- Dismissal with prejudice was improper; the petition had to be dismissed without prejudice because Family Court retains continuing jurisdiction to modify child-support orders upon a proper statutory showing.
Key quotations
“We therefore must agree with Family Court that the mother failed to make a prima facie showing that an upward modification of child support was warranted, and her petition was thus properly dismissed” (*2)
“However, dismissal of the mother's petition with prejudice was in error.” (*2)
“Family Court retains continuing jurisdiction to modify a prior order of child support upon a proper showing of statutorily enumerated circumstances” (*2)
Factual background
The parties are the parents of a child born in 2015, and the father was obligated under a January 2020 consent order to pay $100 per week in child support. The mother alleged that the father had previously unreported cash income and a new job that were not reflected in the support order. Although the father testified at different points that he earned substantially varying amounts, the mother provided little evidence of the father's financial circumstances at the time of the prior order and did not introduce or identify that order during the hearing.
Procedural history
The mother filed a petition in July 2021 seeking an upward modification of the father's child support obligation. After a joint hearing involving numerous petitions filed by the parties, Family Court dismissed the petition with prejudice for failure to state a cause of action. The Appellate Division agreed that the mother failed to make a prima facie showing supporting modification but held that dismissal with prejudice was improper and modified the order to dismiss the petition without prejudice.
Remand instructions
The order was modified by reversing the portion that dismissed the petition with prejudice and dismissing the petition without prejudice; as modified, the order was affirmed.