                           State of New York
                    Supreme Court, Appellate Division
                       Third Judicial Department
Decided and Entered: May 5, 2016                        521547
________________________________

In the Matter of KIRK E.
   KOSINSKI,
                    Appellant,
      v                                      MEMORANDUM AND ORDER

CARRIE A. PARKER,
                    Respondent.
________________________________


Calendar Date:    March 25, 2016

Before:    McCarthy, J.P., Garry, Lynch, Devine and Clark, JJ.

                              __________


        Kathryn S. Dell, Troy, for appellant.

        Carrie A. Parker, Watervliet, respondent pro se.

                              __________


Devine, J.

      Appeal from an order of the Family Court of Albany County
(Kushner, J.), entered January 16, 2015, which dismissed
petitioner's application, in a proceeding pursuant to Family Ct
Act article 4, to modify a prior order of child support.

      The parties are the parents of a son born in 1998 and have
historically enjoyed equal parenting time. Pursuant to a 2009
order to which the parties stipulated – and which was not
included in the record on appeal – petitioner (hereinafter the
father) was directed to pay respondent (hereinafter the mother)
$150 a week in child support.1 Family Court issued an order in


    1
        It appears that the father earns more than the mother
and, as the parties have equal parenting time, he "is deemed to
                              -2-                521547

August 2014, also upon the parties' stipulation, that awarded
them joint legal custody of the child and entrusted the parties
with equal parenting time. The custody order further directed
that, "[f]or purposes of school, the father's residence shall be
considered the child's primary residence." One month later, the
father commenced this proceeding to modify the support order and
terminate his support obligations, arguing that the child had
begun to primarily reside with him. Following a hearing, the
Support Magistrate agreed. Family Court upheld the mother's
objections to the order of the Support Magistrate and determined,
as is relevant here, that the father had not shown a change in
circumstances that would warrant a modification in his support
obligation. Family Court accordingly reinstated the support
order, and the father appeals.

      We affirm. "It is well settled that a parent seeking a
downward modification of a child support order has the burden of
establishing a change in circumstances sufficient to warrant the
requested decrease" (Matter of Carnahan v Parrillo, 112 AD3d
1096, 1097 [2013] [citations omitted]; accord Matter of Jeffers v
Jeffers, 133 AD3d 1139, 1139-1140 [2015]). The father attempted
to do so by claiming that the child had elected to reside with
him in the wake of the 2014 custody order, which could indeed
constitute a sufficient change in circumstances (see e.g. Matter
of Steven J.K. v Leah T.K., 46 AD3d 421, 422 [2007], lv denied 11
NY3d 703 [2008]; Tryon v Tryon, 37 AD3d 455, 457 [2007]). The
custody order awarded the parties equal parenting time, however,
and the child only "resided" with the father so that he could
attend high school in the father's school district. The child,
unsurprisingly, would stop by the father's residence after school
and would sleep there three or four nights a week. While this
led the father to believe that the child was primarily residing
with him, even the father acknowledged that the child had
continued to divide his time between the parties on an
essentially equal basis. Thus, in the absence of proof that the
division of parenting time had significantly changed, the father


be the noncustodial parent for purposes of calculating child
support" (Matter of Mitchell v Mitchell, 134 AD3d 1213, 1214
[2015]).
                              -3-                  521547

failed to demonstrate a change in circumstances that would
warrant the termination of child support (see Matter of Mitchell
v Mitchell, 134 AD3d 1213, 1214-1215 [2015]; DelGaudio v
DelGaudio, 126 AD3d 848, 849 [2015]).

     McCarthy, J.P., Garry, Lynch and Clark, JJ., concur.



     ORDERED that the order is affirmed, without costs.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
