Support Modification: Overview and Update

Upward Modification Granted

Divorce judgment: father's repeated misconduct must be considered. In Kent v. Kent, 29 AD3d 123 (1st Dept. 2006), the First Department granted a motion for upward modification of child support awarded as part of a divorce judgment. The reason given for the modification was the defendant/father's misconduct. (The Kent case had had a long history of litigation and appeals regarding child support ' this was the fifth appeal before the First Department.)

The parties had one son, born in 1986. A judgment of divorce, setting the child support obligation, was first entered in February 2000. From the time of judgment, the father failed to put in place a life insurance policy for the child's benefit, refused to pay the full amount of the support ordered, and never presented clear evidence concerning his actual annual salary. In July 2004, the mother petitioned for an upward modification of child support and a declaration of violation of the prior support order, based on the fact that in an application for a car lease the father had listed his salary as $180,000 whereas all the prior child support orders had based his support obligations on an annual salary of $32,000. The Family Court found that the mother failed to establish an increased need for child support and denied the petition. The mother's application for a willfulness finding was also denied and the court held that the father's $23,000 of arrears could be purged with the payment of $5000. The mother appealed and the father improperly attempted to cross-appeal.

The First Department held that the Family Court erred in denying the upward modification. The court did not address the issue of whether a substantial increase in the non-custodial parent's income, by itself, is sufficient to support an upward modification, finding that in this case the 2.5 times salary increase, the increase in the child's age, the associated costs of raising an older child, and the father's 'extraordinarily egregious and irresponsible manner,' taken together, warranted the modification. The court stated, 'When a party flouts court orders, as this respondent has, he renders the custodial parent so vulnerable to financial chaos and ruin that such misconduct becomes a factor a court must consider and must not ignore.' The court remanded for determination of child support based on the Child Support Standards Act (CSSA) guidelines. It also found that the application for a willfulness finding was erroneously denied and stated that the father could purge himself of the contempt and avoid a jail sentence only by paying all the arrears owed.

Upward Modification Granted ' Stipulation

Court could require support after child reached 21. At the time of the parties' divorce in Schonour v. Johnson, 27 AD3d 1059 (4th Dept. 2006), the plaintiff/father stipulated that he intended for his children to go to college and that he planned to provide for their college education to the best of his ability. The mother then moved for a determination of each party's responsibility for the college costs for their two youngest daughters. In their stipulation, the parties had not placed any age limitations on their mutual promises to pay for college expenses. The father appealed from the Supreme Court determination that he was required to pay two-thirds of his daughters' college expenses even after they had reached 21 years of age.

The Fourth Department held that because the terms of the stipulation did not place an age limit on the father's promise to pay for college and the father could be imputed to have knowledge concerning the age at which his daughters would graduate from college the lower court properly construed the stipulation to provide that the father was required to pay college expenses for the first four years of undergraduate study after each daughter graduated from high school.

Upward Modification Denied

Divorce judgment ' court could not impose obligation when child over 21. In Lincer v. Lincer, 30 AD3d 382 (2d Dept. 2006), the petitioner/mother had brought a motion requesting that the father be ordered to pay for the parties' daughter's fourth year of college and the cost of her summer school. The Supreme Court granted the mother's motion and directed the father to pay for the daughter's fourth year, which was after the daughter had reached 21 years old, as well as the summer school expenses, which were incurred prior to the daughter's 21^st birthday. The father appealed.

The Second Department held that absent a voluntary agreement to pay for the cost of college after the daughter had turned 21, the Supreme Court could not order the father to pay those costs and that the Supreme Court had erred in granting the modification. The court determined that the father was required to pay for the summer school expenses, which were incurred before the daughter's 21^st birthday.

Agreement to Pay College Costs Equal to SUNY Upheld

In Hejna v. Reilly, 26 AD3d 709 (3d Dept. 2006), the parties had entered into a separation agreement in 1997, which provided that the defendant/ father would pay $603.59 in biweekly child support and contribute one half of the college tuition expenses for each of the parties' children 'based upon the cost of same at a New York State supported college, equivalent to SUNY Albany.' In 2004, the parties' daughter enrolled at Yale. The plaintiff/mother moved for modification of child support, seeking to increase the biweekly support and directing the father to pay one half of the actual cost of each child's college expenses. The mother argued that the father's increase in income, receipt of an inheritance, and the daughter's choice of an expensive school constituted an unanticipated change in circumstances.

The Third Department held that where an agreement anticipates that a child might attend college and makes a specific provision to cover college expenses, 'an unanticipated or unreasonable change in circumstances will not be found based solely on an increase in the cost of that education.' The court also determined that the father's increase in income did not warrant modification of child support, and that the mother's conclusory allegations that the cost of the daughter's college left her with insufficient support failed to establish that the children's needs were not being met.

Periods of Unemployment and Extreme Decrease in Salary Not Anticipated

In the case of Lonsdale v. McEwen, 33 AD3d 225 (1st Dept. 2006), the parties had entered into a separation agreement in December 2001. Their agreement provided that in the event of an involuntary substantial decrease in the defendant/father's annual income to $600,000 or less, his annual basic child support obligation would be $33,600 rather than $48,000. It also provided that the father's non-basic child support obligations could be adjusted if his income were to decrease by more than 50% of his 2000 income. In October 2002, the defendant/father lost his job, at which he had earned a salary of $1.3 million. In 2003, the father was unemployed and earned only $77,527. He remained unemployed for most of 2004. He then found employment, at which he expected to have an annual salary of $200,000-$225,000 in the first few years. The father's job loss was not voluntarily, and he had diligently searched for new employment. He had also remarried in April 2002 and he and his new wife had twin sons in September 2003. The father made a motion for downward modification of child support, based on the loss of his high-paying job, his periods of unemployment, his reduced income in 2003 and 2004, and the birth of his sons. He also argued that the mother at the time of the petition earned more than he did at his new position. The Supreme Court denied the father's motion and he appealed.

The First Department held that the father was entitled to reductions in his support obligations, stating that 'the parties' agreement anticipated the loss of defendant's high paying position, but neither anticipated nor addressed either a prolonged period of unemployment or so huge a reduction in salary.' The court also held that the birth of twin sons and the expense of supporting them were unanticipated at the time the separation agreement was entered into. In addition, the mother's increase in salary further supported modification. The court reversed the denial of the modification, granted defendant's motion, and remanded for a hearing on the motion.

The dissent found that the father did not meet the Boden standard for modification because the agreement specifically anticipated and addressed loss of his high paying position and an involuntary substantial decrease in salary. The dissent also concluded that the father's remarriage and the birth of his sons was not unforeseeable.

Termination of Support Warranted Where Child Not Seeing Mother

In Deith v. Deith, 27 AD3d 613 (2d Dept. 2006), the parties were divorced by judgment in 2003. In 2004, the respondent/father moved to terminate his child support obligation to the mother because, at that time, the mother had not seen the parties' son for over a year. The Supreme Court granted the father's motion to modify the divorce judgment and terminate his child support payments and the mother appealed.

The Second Department upheld the Supreme Court's order, finding that the mother's not seeing the parties' son in the past year was an unanticipated change in circumstances that warranted the termination of the father's child support obligation.

Reduction of Arrears Granted

In Martinez v. Torres, 26 AD3d 496 (2d Dept. 2006), the petitioner/father filed a petition requesting a downward modification of the 1995 Family Court child support order and that his $27,864.18 of arrears be reduced to $500. The father alleged that downward modification of his child support obligation and reduction of the arrears was warranted because his income was below the poverty line. The Family Court granted a downward modification of the child support order and, after granting the father's objection to its initial order, reduced the arrears that had accrued after the date the father filed his petition for modification to $500. The Family Court held that any arrears incurred before the father filed his petition remained outstanding and could not be reduced.

The Second Department held that under the Family Court Act, which provides that unpaid child support arrears shall not accrue in excess
of $500 where the income of the non-custodial parent is less than or equal to the poverty line, the father was entitled to a reduction to $500 of the arrears that had accrued since he had filed the modification petition, but the Family Court correctly determined that all arrears that had accrued before the father had filed his petition remained outstanding.

Child Support Vacated and Maintenance Decreased

In DiPaola v. DiPaola, 28 AD3d 480 (2d Dept. 2006), the petitioner/ father filed a petition in Family Court to vacate his child support obligation and decrease his maintenance obligation because residential custody of the parties' children had been transferred from the mother to the father and the mother's earning potential had increased. The Family Court granted the father's petition and the mother appealed.

The Second Department determined that the transfer of residential custody of the children from the mother to the father and the mother's increased earning potential constituted a substantial change in circumstances that warranted vacatur of the father's child support obligation and a downward modification of his maintenance obligation.

Drug Addiction Was Self-Imposed Change of Circumstances

In Minter v. Minter, 11 Misc.3d 1081(A) (Family Ct., Monroe Cty. 2/1/06), the petitioner/father sought a downward modification of his child support obligation, which was set by a Family Court order, based on the fact that he had been fired from his job as a result of a severe drug addiction. He argued that this change in circumstance was not self-imposed because drug addiction is a disease. Petitioner had entered drug rehabilitation, stayed with the rehabilitation program to help other addicts, and then went to college. He requested a downward modification from the time of his firing onward.

The Family Court held that the father was not entitled to a downward modification for the time he was unable to work because of his drug addiction, or any of the time after his rehabilitation as any change in circumstances experienced by the father had been self-imposed. The court stated that '[f]or courts to allow substance abusers or alcoholics to reduce child support for accelerating their use to the point of job loss would be to reward them for their serious mistakes, and in the case of drug addiction, for breaking the law.'

Further Downward Modification Denied

Divorce judgment ' Failure to seek employment commensurate with qualifications and experience. In Baffi v. Baffi, 24 AD3d 578 (2d Dept. 2005), the parties were divorced by judgment entered in 2001. After the judgment, the defendant/father, through no fault of his own, lost his job as a senior executive at Paramount Pictures. He then took a low-paying job as a manager of a flower shop. The father moved to vacate his maintenance and child support obligations in 2004. The Supreme Court granted his motion to vacate his maintenance and his child support obligations only to the extent of reducing his child support obligation. The Supreme Court determined that the father failed to use his best efforts to find employment commensurate with his qualifications and experience, and therefore imputed income to him. The Supreme Court also determined that the father's child support obligations should be based on an annual income of $150,000, instead of $250,000 as it had been in the judgment of divorce. The father appealed.

The Third Department held that because the father failed to keep up his efforts to obtain employment commensurate with his qualifications and experience, his loss of employment could not support a downward modification and the Supreme Court properly imputed income to him based on his prior earning history and on the value of the rent-free home in which he lived. However, it also found that Supreme Court had erred in determining the father's child support obligation based on an annual income of $150,000 without taking into account the mother's increase in annual income in determining the father's new pro rata share of support.

Failure to Use Best Efforts to Seek Employment

In Freedman v. Horike, 26 A.D.3d 680 (3d Dept. 2006), the parties were divorced in 2002 pursuant to a Supreme Court judgment that incorporated provisions of two Family Court orders and the parties' stipulation. In January 2003, after the petitioner/father lost his job, the parties stipulated to a reduction of the father's child support obligation. In November 2003, when the father's unemployment benefits ran out, he filed for a downward modification of his support obligation. The Columbia County Department of Social Services also filed a violation petition against the father seeking arrears. The Family Court entered a judgment for the arrears and found that the father had willfully violated the prior support orders and the father appealed.

The Third Department held that the father willfully violated his support obligations based on the fact that his unemployment was self-imposed, insomuch as he was fired from his position as a financial adviser due to his violation of rules governing conduct of financial advisers, and the fact that he declined employment opportunities in order to maintain his unemployment benefits. In denying the downward modification, the court also found that the father had 'several sources of collateral income, such as stock sales, that provided sufficient funds to meet
his support obligations' and stated that a 'child support obligation is not determined solely on 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 parent's support obligation is unwarranted.'

Child Support Determined By Assets and Earning Power

In Katerina D. v. Robert D., 10/2/2006 N.Y.L.J. 24, col. 3, the parties entered into a separation agreement in 2004, which provided that the defendant/father was to pay $1800 per month until the parties' oldest child is emancipated, at which point his support obligation would be reduced to $1300 per month. The father moved for a downward modification of child support based on the fact that he was no longer employed, that he had previously been a financial analyst earning $85,000 per year, and that his unemployment lasted for one and a half years. He contended that he made good-faith efforts to obtain employment by submitting 3000 resumes to employers via the Internet.

The Supreme Court denied the requested downward modification, finding that the father had not made good faith efforts to obtain employment commensurate with his qualifications and experience and that the father should have realized that merely submitting resumes via the Internet was not a fruitful way to obtain employment. In holding that the father could continue to meet his child support obligations as provided for in the parties' stipulation, the Supreme Court stated that 'the proper amount of support payable is determined not by a parent's current economic situation, but by his assets and earning powers.'

Marcy L. Wachtel, a member of this newsletter's Board of Editors, is a partner in the firm of Katsky Korins, LLP. Suzanne L. Stolz is an associate at the firm.

In the past few years more requests for modification of a child support obligations, either upward or downward, have been denied than granted. With regard to the cases in which an upward modification was denied, the courts have been reluctant to find that the party seeking to modify the child support obligation has established that any claimed change in circumstances was unanticipated or that the children's needs were not being met.

Similar to the cases seeking an upward modification of child support, it appears that courts are more likely to deny requests for downward modification of support obligations than to grant such requests. Following are some of the more significant recent decisions in the realm of child support award modification.

The Cases

Upward Modification Granted

Divorce judgment: father's repeated misconduct must be considered. In Kent v. Kent , 29 AD3d 123 (1st Dept. 2006), the First Department granted a motion for upward modification of child support awarded as part of a divorce judgment. The reason given for the modification was the defendant/father's misconduct. (The Kent case had had a long history of litigation and appeals regarding child support ' this was the fifth appeal before the First Department.)

The parties had one son, born in 1986. A judgment of divorce, setting the child support obligation, was first entered in February 2000. From the time of judgment, the father failed to put in place a life insurance policy for the child's benefit, refused to pay the full amount of the support ordered, and never presented clear evidence concerning his actual annual salary. In July 2004, the mother petitioned for an upward modification of child support and a declaration of violation of the prior support order, based on the fact that in an application for a car lease the father had listed his salary as $180,000 whereas all the prior child support orders had based his support obligations on an annual salary of $32,000. The Family Court found that the mother failed to establish an increased need for child support and denied the petition. The mother's application for a willfulness finding was also denied and the court held that the father's $23,000 of arrears could be purged with the payment of $5000. The mother appealed and the father improperly attempted to cross-appeal.

The First Department held that the Family Court erred in denying the upward modification. The court did not address the issue of whether a substantial increase in the non-custodial parent's income, by itself, is sufficient to support an upward modification, finding that in this case the 2.5 times salary increase, the increase in the child's age, the associated costs of raising an older child, and the father's 'extraordinarily egregious and irresponsible manner,' taken together, warranted the modification. The court stated, 'When a party flouts court orders, as this respondent has, he renders the custodial parent so vulnerable to financial chaos and ruin that such misconduct becomes a factor a court must consider and must not ignore.' The court remanded for determination of child support based on the Child Support Standards Act (CSSA) guidelines. It also found that the application for a willfulness finding was erroneously denied and stated that the father could purge himself of the contempt and avoid a jail sentence only by paying all the arrears owed.

Upward Modification Granted ' Stipulation

Court could require support after child reached 21. At the time of the parties' divorce in Schonour v. Johnson , 27 AD3d 1059 (4th Dept. 2006), the plaintiff/father stipulated that he intended for his children to go to college and that he planned to provide for their college education to the best of his ability. The mother then moved for a determination of each party's responsibility for the college costs for their two youngest daughters. In their stipulation, the parties had not placed any age limitations on their mutual promises to pay for college expenses. The father appealed from the Supreme Court determination that he was required to pay two-thirds of his daughters' college expenses even after they had reached 21 years of age.

The Fourth Department held that because the terms of the stipulation did not place an age limit on the father's promise to pay for college and the father could be imputed to have knowledge concerning the age at which his daughters would graduate from college the lower court properly construed the stipulation to provide that the father was required to pay college expenses for the first four years of undergraduate study after each daughter graduated from high school.

Upward Modification Denied

Divorce judgment ' court could not impose obligation when child over 21. In Lincer v. Lincer , 30 AD3d 382 (2d Dept. 2006), the petitioner/mother had brought a motion requesting that the father be ordered to pay for the parties' daughter's fourth year of college and the cost of her summer school. The Supreme Court granted the mother's motion and directed the father to pay for the daughter's fourth year, which was after the daughter had reached 21 years old, as well as the summer school expenses, which were incurred prior to the daughter's 21^st birthday. The father appealed.

The Second Department held that absent a voluntary agreement to pay for the cost of college after the daughter had turned 21, the Supreme Court could not order the father to pay those costs and that the Supreme Court had erred in granting the modification. The court determined that the father was required to pay for the summer school expenses, which were incurred before the daughter's 21^st birthday.

Agreement to Pay College Costs Equal to SUNY Upheld

In Hejna v. Reilly, 26 AD3d 709 (3d Dept. 2006), the parties had entered into a separation agreement in 1997, which provided that the defendant/ father would pay $603.59 in biweekly child support and contribute one half of the college tuition expenses for each of the parties' children 'based upon the cost of same at a New York State supported college, equivalent to SUNY Albany.' In 2004, the parties' daughter enrolled at Yale. The plaintiff/mother moved for modification of child support, seeking to increase the biweekly support and directing the father to pay one half of the actual cost of each child's college expenses. The mother argued that the father's increase in income, receipt of an inheritance, and the daughter's choice of an expensive school constituted an unanticipated change in circumstances.

The Third Department held that where an agreement anticipates that a child might attend college and makes a specific provision to cover college expenses, 'an unanticipated or unreasonable change in circumstances will not be found based solely on an increase in the cost of that education.' The court also determined that the father's increase in income did not warrant modification of child support, and that the mother's conclusory allegations that the cost of the daughter's college left her with insufficient support failed to establish that the children's needs were not being met.

Periods of Unemployment and Extreme Decrease in Salary Not Anticipated

In the case of Lonsdale v. McEwen, 33 AD3d 225 (1st Dept. 2006), the parties had entered into a separation agreement in December 2001. Their agreement provided that in the event of an involuntary substantial decrease in the defendant/father's annual income to $600,000 or less, his annual basic child support obligation would be $33,600 rather than $48,000. It also provided that the father's non-basic child support obligations could be adjusted if his income were to decrease by more than 50% of his 2000 income. In October 2002, the defendant/father lost his job, at which he had earned a salary of $1.3 million. In 2003, the father was unemployed and earned only $77,527. He remained unemployed for most of 2004. He then found employment, at which he expected to have an annual salary of $200,000-$225,000 in the first few years. The father's job loss was not voluntarily, and he had diligently searched for new employment. He had also remarried in April 2002 and he and his new wife had twin sons in September 2003. The father made a motion for downward modification of child support, based on the loss of his high-paying job, his periods of unemployment, his reduced income in 2003 and 2004, and the birth of his sons. He also argued that the mother at the time of the petition earned more than he did at his new position. The Supreme Court denied the father's motion and he appealed.

The First Department held that the father was entitled to reductions in his support obligations, stating that 'the parties' agreement anticipated the loss of defendant's high paying position, but neither anticipated nor addressed either a prolonged period of unemployment or so huge a reduction in salary.' The court also held that the birth of twin sons and the expense of supporting them were unanticipated at the time the separation agreement was entered into. In addition, the mother's increase in salary further supported modification. The court reversed the denial of the modification, granted defendant's motion, and remanded for a hearing on the motion.

The dissent found that the father did not meet the Boden standard for modification because the agreement specifically anticipated and addressed loss of his high paying position and an involuntary substantial decrease in salary. The dissent also concluded that the father's remarriage and the birth of his sons was not unforeseeable.

Termination of Support Warranted Where Child Not Seeing Mother

In Deith v. Deith , 27 AD3d 613 (2d Dept. 2006), the parties were divorced by judgment in 2003. In 2004, the respondent/father moved to terminate his child support obligation to the mother because, at that time, the mother had not seen the parties' son for over a year. The Supreme Court granted the father's motion to modify the divorce judgment and terminate his child support payments and the mother appealed.

The Second Department upheld the Supreme Court's order, finding that the mother's not seeing the parties' son in the past year was an unanticipated change in circumstances that warranted the termination of the father's child support obligation.

Reduction of Arrears Granted

In Martinez v. Torres , 26 AD3d 496 (2d Dept. 2006), the petitioner/father filed a petition requesting a downward modification of the 1995 Family Court child support order and that his $27,864.18 of arrears be reduced to $500. The father alleged that downward modification of his child support obligation and reduction of the arrears was warranted because his income was below the poverty line. The Family Court granted a downward modification of the child support order and, after granting the father's objection to its initial order, reduced the arrears that had accrued after the date the father filed his petition for modification to $500. The Family Court held that any arrears incurred before the father filed his petition remained outstanding and could not be reduced.

The Second Department held that under the Family Court Act, which provides that unpaid child support arrears shall not accrue in excess
of $500 where the income of the non-custodial parent is less than or equal to the poverty line, the father was entitled to a reduction to $500 of the arrears that had accrued since he had filed the modification petition, but the Family Court correctly determined that all arrears that had accrued before the father had filed his petition remained outstanding.

Child Support Vacated and Maintenance Decreased

In DiPaola v. DiPaola , 28 AD3d 480 (2d Dept. 2006), the petitioner/ father filed a petition in Family Court to vacate his child support obligation and decrease his maintenance obligation because residential custody of the parties' children had been transferred from the mother to the father and the mother's earning potential had increased. The Family Court granted the father's petition and the mother appealed.

The Second Department determined that the transfer of residential custody of the children from the mother to the father and the mother's increased earning potential constituted a substantial change in circumstances that warranted vacatur of the father's child support obligation and a downward modification of his maintenance obligation.

Drug Addiction Was Self-Imposed Change of Circumstances

In Minter v. Minter , 11 Misc.3d 1081(A) (Family Ct., Monroe Cty. 2/1/06), the petitioner/father sought a downward modification of his child support obligation, which was set by a Family Court order, based on the fact that he had been fired from his job as a result of a severe drug addiction. He argued that this change in circumstance was not self-imposed because drug addiction is a disease. Petitioner had entered drug rehabilitation, stayed with the rehabilitation program to help other addicts, and then went to college. He requested a downward modification from the time of his firing onward.

The Family Court held that the father was not entitled to a downward modification for the time he was unable to work because of his drug addiction, or any of the time after his rehabilitation as any change in circumstances experienced by the father had been self-imposed. The court stated that '[f]or courts to allow substance abusers or alcoholics to reduce child support for accelerating their use to the point of job loss would be to reward them for their serious mistakes, and in the case of drug addiction, for breaking the law.'

Further Downward Modification Denied

Divorce judgment ' Failure to seek employment commensurate with qualifications and experience. In Baffi v. Baffi, 24 AD3d 578 (2d Dept. 2005), the parties were divorced by judgment entered in 2001. After the judgment, the defendant/father, through no fault of his own, lost his job as a senior executive at Paramount Pictures. He then took a low-paying job as a manager of a flower shop. The father moved to vacate his maintenance and child support obligations in 2004. The Supreme Court granted his motion to vacate his maintenance and his child support obligations only to the extent of reducing his child support obligation. The Supreme Court determined that the father failed to use his best efforts to find employment commensurate with his qualifications and experience, and therefore imputed income to him. The Supreme Court also determined that the father's child support obligations should be based on an annual income of $150,000, instead of $250,000 as it had been in the judgment of divorce. The father appealed.

The Third Department held that because the father failed to keep up his efforts to obtain employment commensurate with his qualifications and experience, his loss of employment could not support a downward modification and the Supreme Court properly imputed income to him based on his prior earning history and on the value of the rent-free home in which he lived. However, it also found that Supreme Court had erred in determining the father's child support obligation based on an annual income of $150,000 without taking into account the mother's increase in annual income in determining the father's new pro rata share of support.

Failure to Use Best Efforts to Seek Employment

In Freedman v. Horike , 26 A.D.3d 680 (3d Dept. 2006), the parties were divorced in 2002 pursuant to a Supreme Court judgment that incorporated provisions of two Family Court orders and the parties' stipulation. In January 2003, after the petitioner/father lost his job, the parties stipulated to a reduction of the father's child support obligation. In November 2003, when the father's unemployment benefits ran out, he filed for a downward modification of his support obligation. The Columbia County Department of Social Services also filed a violation petition against the father seeking arrears. The Family Court entered a judgment for the arrears and found that the father had willfully violated the prior support orders and the father appealed.

The Third Department held that the father willfully violated his support obligations based on the fact that his unemployment was self-imposed, insomuch as he was fired from his position as a financial adviser due to his violation of rules governing conduct of financial advisers, and the fact that he declined employment opportunities in order to maintain his unemployment benefits. In denying the downward modification, the court also found that the father had 'several sources of collateral income, such as stock sales, that provided sufficient funds to meet
his support obligations' and stated that a 'child support obligation is not determined solely on 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 parent's support obligation is unwarranted.'

Child Support Determined By Assets and Earning Power

In Katerina D. v. Robert D. , 10/2/2006 N.Y.L.J. 24, col. 3, the parties entered into a separation agreement in 2004, which provided that the defendant/father was to pay $1800 per month until the parties' oldest child is emancipated, at which point his support obligation would be reduced to $1300 per month. The father moved for a downward modification of child support based on the fact that he was no longer employed, that he had previously been a financial analyst earning $85,000 per year, and that his unemployment lasted for one and a half years. He contended that he made good-faith efforts to obtain employment by submitting 3000 resumes to employers via the Internet.

The Supreme Court denied the requested downward modification, finding that the father had not made good faith efforts to obtain employment commensurate with his qualifications and experience and that the father should have realized that merely submitting resumes via the Internet was not a fruitful way to obtain employment. In holding that the father could continue to meet his child support obligations as provided for in the parties' stipulation, the Supreme Court stated that 'the proper amount of support payable is determined not by a parent's current economic situation, but by his assets and earning powers.'

Marcy L. Wachtel, a member of this newsletter's Board of Editors, is a partner in the firm of Katsky Korins, LLP. Suzanne L. Stolz is an associate at the firm.