When a judge works this hard to provide a searching analysis of a difficult question, we should sit up and take notice.
Should an unemployed father be required to prove why he should not have to relocate to seek/obtain employment in his field as a condition to him receiving a downward modification of his child support obligations?
Presenting a scholarly review of decisions in New York and around the country, Monroe County Supreme Court Justice Richard A. Dollinger crafted a test to determine whether a parent with substantial child support obligations, and unique job skills, is required as a matter of law to geographically expand his search for employment.
The essential facts in Szalapski v. Schwartz are not unfamiliar. The former spouses have three children, ranging in ages from 10 to 15. When the parties were divorced in 2005, the father was earning $82,000 annually; the mother approximately $6,000. The father’s child support obligation was $1,826.49 monthly.
Mr. Szaplapski (the “father”) is a “multi-disciplinary physicist,” with a career in academia before serving as a staff engineer. He left academics in 2004, electing to stay in western New York to accommodate his family. He worked in software design for which he had only marginal qualifications. In July, 2010, the father was laid off. After his severance pay ended, he received unemployment insurance benefits of $405 per week.
In the application being decided by Justice Dollinger, the father, now remarried, sought to reduce his child support obligation. He alleged that he was unable to find comparable employment in the geographic area where his children live. His ex-wife challenged the diligence of his job search, but also argued that because of the father’s unique talents, the court must require him to diligently search for employment in a broader geographic area. That the father failed to do.
Justice Dollinger began with a detailed legal and factual analysis of the father’s search for employment in the Rochester area where the parties lived. This exhaustive analysis, itself, presented a primer on the diligent efforts necessary to withstand a motion to dismiss an application for a downward modification of a child support obligation based upon the loss of employment. Based upon the evidence presented Justice Dollinger found that the father presented “a prima facie case for a hearing.”
Noting that a parent’s child support obligations are “paramount.” Justice Dollinger then turned “to the second question: is the applicant required to demonstrate a reasonable job search outside the local community and, if so, how far does his job search have to extend?”
The Court found that New York law was strangely silent on how to balance the “book-end policies of New York’s child-parent law”: maintaining the child’s standard of living and the joint right of the noncustodial parent and children to visitation.
Two Fourth Department cases, Jeflo v. Jeflo, __ AD3d __ (2011), and Simmons v. Simmons, 26 AD3d 883(4th Dep’t 2006),aff’g11 Misc 3d 1055A (Sup. Ct. Alleghany Cty 2004) suggested “that there is a “one hour’s drive” radius on the geographic reach of a “diligent job search.” However, Justice Dollinger felt the a “bright line test” of one hour’s drive was an “arbitrary rule, with no statutory support and the potential for a wide community based variance.”
Instead, Justice Dollinger turned for guidance to the more flexible analysis set forth by the Court of Appeals in Tropea v. Tropea, 87 NY2d 727, 736 (1996), for a court to decide whether the custodial parent should be allowed to relocate with the children.
After reviewing the factors to be considered to determine the best interests of the children in such cases, Justice Dollinger looked for further guidance to out-of-state holdings on the requirements used to measure the geographic reach of a diligent job search. Discussing the wide range in views, the Court was sympathetic to the rejection of any per se rules by the Virginia Court of Appeals in Reece v. Reece, 470 S.E.2d 148 (1996).
Blending the factors presented in Tropea and Reece, Justice Dollinger declared that the factors which would be evaluated to determine whether one looking to reduce support obligations was required to engage a broad search for employment and/or relocate for employment. Those factors included, but notably would not be limited to:
- the magnitude of the economic benefit resulting from the relocation for employment;
- the quality of the relationships between the child and the obligated parent;
- the impact of the relocation on the quantity and quality of the child’s future contact with the noncustodial parent or other family members;
- the degree to which the custodial parent’s and the child’s life may be enhanced economically by the income derived from the relocation;
- the feasibility of preserving the relationship between the noncustodial parent and the child through suitable visitation arrangements;
- the supporting spouse’s business and familial ties to the community and the length of time in which the supporting spouse has resided in the community;
- monetary considerations which would impose an undue hardship upon the supporting spouse if he or she were forced to relocate for employment;
- the geographic distance between the respective communities and the methods of travel between the communities; and
- the severity of the burden created by a downward modification of the support payments would have on the obligee spouse.
Weighing these factors provides a reasonable foundation to evaluate whether an applicant’s search for employment, to be diligent, requires looking outside the local area. The Court stated that the scope of a “diligent search” seems to be a judicial construct and, in this economy, with many parties seeking employment in a truly national marketplace — and simultaneously seeking modifications of their support obligations — greater clarity in balancing these competing interests is required.
Justice Dollinger concluded that a parent should be required to search in a broad geographic area until the Tropea/Reece factors tilt against his relocation. The test should balance the economic benefit of increased support against the visitation rights of the husband. The court should also explore whether those rights could be preserved, yet suitably altered (as with custodial-parent relocation).
Justice Dollinger thus placed the burden on the father to show why he should not be required to relocate to find suitable re-employment.
[T]his Court is cognizant that the burden of proof on these criteria rests with the father. He is seeking modification of his support under the diligent search test. He retains the burden of proof on all these criteria to show that his “diligent search for employment” does not require him to seek employment outside his current community. He must demonstrate that he could not obtain employment in a location in which he would nonetheless be able to maintain a reasonable relationship with his youngest son. In essence, the husband must prove that the benefit of the increased support, occasioned by finding a job in a new location, would be outweighed by the deleterious impact on his relationship with his son and that no alteration in the visitation schedule could accommodate his visitation with his son.
Mr. Szaplapski was granted a hearing to establish the application of the Tropea/Reece principles to this case. The hearing was delayed for 60 days to permit him to investigate employment opportunities outside the geographic area surrounding his current residence.
“Bright-line tests” are arbitrary. They also serve to advise parents, in advance, what they are required to do. They do help matrimonial lawyers counsel their clients. However, Justice Dollinger is correct. The compelling interests of a child should not be sacrificed to arbitrary planning.
On the other hand, should the father, here, have the burden to prove why he should not have to relocate (with his new wife) to a new home within an hour or two flight from his “former” family.
The Tropea analogy does not hold completely true. In relocation cases applying Tropea, the custodial parent wants to move; to obtain a job, join a new spouse, be with family, etc. The desired relocation is presumably intended to be permanent: this is where the custodial parent wants to go and wants to stay. The only disruption to the noncustodial parent’s life will be the need to alter visitation.
Here, Mr. Szaplapski does not want to move. The court will require that every aspect of his life over the past many years yield to the child support obligation. Moreover, the forced loss of home, friends, church, etc. is not a desired permanent plan; it need only to last until the children are emancipated.
Mr. Szaplapski reported that a decision was made in 2004 to stay in western New York for the sake of the family. Should not the family as a whole be forced to abandon that plan? Should the decision whether to relocate be a family decision? If the custodial parent wants to insist that the noncustodial parent relocate to obtain financial security, should not the custodial parent be compelled to follow if the move is needed to insure family financial security?
Moreover, if it is the children’s needs that are paramount, should not the custodial parent be required to pitch in. Before making the father relocate hundreds of miles away, if not more, should not the mother be required to demonstrate that she has not and cannot improve her economic lot for the sake of the children. (If the child support obligation is fixed by agreement, the mother’s contract remedies would still be intact; the father would ‘pay the mother back’ at a later stage of life.)
Still further, Justice Dollinger directed Mr. Szaplapski to make use of the 60 days before the hearing “to investigate employment opportunities within” the geographic area deemed appropriate. The Court suggested that New York City, Washington and Cleveland might be appropriate, but how does Mr. Szaplapski know where to stop?
How is Mr. Szaplapski to investigate those employment opportunities? Should a man living on unemployment benefits and unable to meet his existing support obligation be required to travel to thesecities, staying there for days to hit the pavement? Withsuch limited funds, is he required to hire an expert to advise the Court on employment opportunities. If a decision is based on statistical opportunities, who guarantees the statistical opportunity to Mr. Szaplapski?
Moreover, Mr. Szaplapski faces a Catch 22. Until he knows whether the Tropea/Reece “balance” requires him to move, should he actually apply for employment, no less accept a job?
Generally, how will a father who loses his job know when he must start looking out of state? If construction jobs are slow at home, must every construction worker immediately look around the country for better prospects?
Moreover, willful non-payment of child support may be punishable as a contempt of court. Jail or relocation may be the choice confronting the unemployed parent. Viewed with that extreme lens, the issue is one of constitutional implications.
While a “bright-line test” should yield to compelling necessity, putting the burden solely upon the father would not appear balanced. If this is a post-divorce family crisis, it is the entire family that should face the crisis together.