Justice Richard A. Dollinger

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U-haul.jpgWhen 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?”Continue Reading Unemployed Father May Have To Relocate Rather Than Having His Child Support Obligation Reduced

Gavel 2.jpgElevating substance over form, Supreme Court Monroe County Acting Justice Richard A. Dollinger allowed a husband to amend his complaint in a 2009 divorce action to add a no-fault claim under D.R.L. §170(7), effective October 12, 2012.

Justice Dollinger in his April 16, 2012 decision in G.C. v. G.C. (pdf), noted New York’s public policy is to freely grant permission to amend complaints. The wife objected, noting that the Legislature expressly limited no-fault claims to actions commenced after its effective date.

D.R.L. §170(7) permits a divorce to be granted upon the sworn declaration of a party that the marriage has been “irretrievably broken down for a period of six months.” Justice Dollinger stated that the Legislature’s limitation of such a no-fault ground to actions commenced after the October 12, 2010 effective date of the statute, was satisfied by requiring that no such claim could be raised by amended complaint until six months after the effective date.

When the husband moves to amend his complaint to add a cause of action under Section 170(7), he does not violate the language of the statute or the intention of the Legislature, Instead, he seeks to. invoke what the Legislature extended to him: a cause of action that has ripened because more than six months have passed since the date of the amendment and during that time, the husband swears that his marriage has been irretrievably broken.

Continue Reading Judge Allows No-fault Divorce Claim to be Added to Pre-No-fault Case

Update: In a decision issued November 9, 2012, the Appellate Division, Fourth Department, affirmed the October 28, 2011 decision of Monroe County Supreme Court Justice Richard A. Dollinger for the reasons stated in Justice Dollinger’s opinion: a party’s sworn statement of irretrievable breakdown is incontestable. It is not subject to attack at trial.

Original January 30, 2012 entry:

gavel 1 small.jpgGloria Sorrentino, 79 years old, was compelled to endure a three-day trial to obtain her “no-fault divorce”;  and that trial was only conducted after Mrs. Sorrentino had been subjected to an inquiry as to her competency and her freedom from duress from two of her children. Acting Suffolk Supreme Court Justice James F. Quinn, in his January 12, 2012 decision in Sorrentino v. Sorrentino, declared the continuing need of a family to go through the tragedy of a divorce grounds trial despite the October, 2010 adoption of New York’s no-fault statute.

To establish her irretrievable breakdown grounds, Mrs. Sorrentino testified to the years of the lack of a relationship with her husband of 56 years. That testimony was corroborated by the detailed testimony of two of the parties’ children.

Justice Quinn ruled that this detailed and corroborated testimony, alone, was not a sufficient basis upon which a court could grant a divorce on the grounds of irretrievable breakdown. Mr. Sorrentino was entitled to challenge his wife’s case and provide his defense.

Justice Quinn held that not only was Mrs. Sorrentino required to demonstrate why she believed her marriage had broken down irretrievably, but also that the court was entitled, or rather required to reach the same conclusion objectively on the basis of all of the evidence presented. Only the court and not the parties, no less only one of the parties, was entitled to decide when a marriage had irretrievably broken down.Continue Reading No-fault Divorce Is Not Here, Yet: One Court Decides that Whether a Marriage Has Broken Down Irretrievably is an Objective Issue of Fact