In its May 6, 2015 decision in Thompson-Fleming v. Fleming, the Appellate Division, Second Department, reversed the determination of Kings County Family Court Support Magistrate Kathryn A. Baur that had based a child support award on the father’s 2013 mid-year earnings-to-date. The Magistrate failed to account for the fact that the father had been
Unemployment, alone, is not sufficient to avoid incarceration for the willful failure to pay child support. So held the First Department when on April 8, 2014 it affirmed the determination of Bronx County Family Court Judge Sidney Gribetz in Gina C. v. Augusto C.
Based upon the fact-finding determination of the Support Magistrate, Judge Gribetz…
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?”…