Plaintiff/father seeks to reduce his child support obligation because he has been unable to find comparable employment in the geographic area where his children live. Defendant/mother opposes the application, arguing that because of the father's unique talents, he must diligently search for employment in a broader geographic area, but has failed to do so.

At the heart of this dispute is whether a parent with substantial child support obligations, and unique job skills, is required as a matter of law to expand his search for employment if the consequence of accepting employment far away may diminish his visitation with his children. The father moves by order to show cause to modify his child support obligation. Mother opposes the application, and cross-moves to transfer the dependency exemptions from the father to her and for attorneys fees.

The parties have three children, ranging in ages from 10 to 15. When the parties were divorced in 2005, the father earned $82,000 annually and the mother earned approximately $6,000. Based on these incomes, the father paid $1,826.49 monthly in child support.

The husband is a "multi-disciplinary physicist," who possesses a doctorate in physics and had a career in academia before serving as a staff engineer. The father states that he left academics in 2004 and elected 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 from his employment and was paid severance payments, roughly equal to his then salary, until October 19, 2010. After his severance ended, he received unemployment insurance benefits of $405 per week, but the child support enforcement unit was intercepting $202 of each week's allotment, leaving him with less than $160 (after taxes) each week.

The father produced a statement of net worth, indicating that he lived in a rented apartment, lived off credit card debt, and had barely enough money to pay for food and other living expenses. He lists his monthly expenses as $5,934. In his affidavits before the Court, he notes:

[T]here is not a big call for my particular skills in this region of the country and the high tech jobs that may have been here have dried up with economy. If I could move to a different part of the country, there would be more opportunities for someone with my particular educational background and skills but I cannot leave my children. Therefore, I am resigned to seeking employment in the western New York area.

As part of his application to this Court, the father has a lengthy list of employment search efforts and job interviews "over the past few years." He avers that he has been told that he is overqualified. There is no corroboration of that assessment by any other witness. In fact, there is no corroboration of any the husband's allegations - there are no expert opinions and no sworn statements from any other witnesses.

The father indicates that he "recently" interviewed for a visiting assistant professor position at a local college but was not hired. He also attests that he applied for teaching positions at University of Rochester in 2009 and 2010 but there is no assertion that he has made any applications since the end of his severance pay in October 2010. (He recites that he "applied" for positions but there is no indication that the applications post-date the termination of severance payments.)After he lost his job, the husband describes enrolling in the New York State Department of Labor Self-Employment Assistance Program (SEAP).^[FN1] He attests that he has started an online [*3]physics and math tutoring service, which he anticipates may achieve profitability in 2012. He also has participated extensively in the Entrepreneurs Network sponsored by the County of Monroe Industrial Development Agency and High Tech Rochester. However, his affidavit indicates no job leads from this participation. The father also garnered adjunct teaching positions at the State University of New York, teaching three courses, but the net earnings from these positions are less than $250 per week. He has also qualified for a National Science Foundation scholarship to return to college and earn a teaching degree, after which he will be required to teach in a high-needs district. He estimates that two years from now he could earn more than $50,000 a year with the additional training, but until then, his annual income is projected to be less than $10,000.

The husband also submits a list of employment opportunities which he pursued, but these applications relate to 2004, and several opportunities in 2007-2008, all of which predate his 2010 loss of employment. He also recites a series of seminars and networking groups in which he participates, but there is no evidence that these networking experiences have or will lead to future employment.^[FN2] The father, while seeking to establish his job search efforts, also presents evidence of the mother's current employment and income, but at this stage, when he is seeking to modify his obligation, the Court declines to consider her income as relevant to the husband's entitlement to modification.

In response, the mother suggests that the father, because of his unique skills and experience, should be required to engage in a nationwide search for employment. She argues that his search has not been "diligent" because, based on his affidavit, he has only made "some unspecified contacts limited in geographic area."^[FN3] She adds that most of his job search efforts pre-date his latest loss of employment and do not include any specific searches.^[FN4]

The mother also argues through her counsel that the father has an obligation to support all three of his children. Under the current circumstances, it is undisputed that the father only has contact with one of the three. She argues that when the father claims he neglected employment opportunities in other geographic areas to be near his youngest son, he was also sacrificing the support needs of his two older children, with whom he has little contact. She claims that the support needs of all three children require that the father expand his geographic area for his job search.

In support of this argument, the mother notes that the Monroe County Family Court recently changed the custody of the three children from joint to sole custody with the mother. The youngest son has visitation with the father and the order requires counseling for the father and all his children. The order was issued in October 2010, nearly simultaneously with the father's loss of his severance [*4]pay. The mother alleges, without contradiction, that the father has contact only with the youngest child and that she provides the "vast majority of care for the children." Lastly, she argues, somewhat sardonically, that the children would be better off if the father "began working at McDonald's."^[FN5]

The husband submitted a responsive affidavit and argues that after he lost his most recent employment, he "networked heavily, which is one of the main ways to actually obtain a job in this area." He asserts that the has been "applying to posted jobs and meeting with some headhunters." The husband describes, at length, his admission into the Department of Labor Self-Employment Program and his applications for teaching positions at local colleges. He adds that requiring him to perform a nationwide search would be "very unreasonable" because of his three children in Rochester. He states that "they are the most important thing to me in my life and I am not going to leave them."

Where the change in circumstances is the loss of employment, a party seeking a downward modification must make a good-faith effort at seeking re-employment commensurate with his or her qualifications and experience. Davis v. Davis, 13 AD3d 623, 624 (2d Dep't 2004), citing Madura v. Nass, 304 AD2d 579, 580 (2d Dep't 2003); Austein-Gillman v. Gillman, 292 AD2d 5324 (2d Dep't 2002).^[FN6] The proper amount of support to be paid is determined not by the parent's current economic situation, but by the parent's assets and earning capacity. See Hickland v. Hickland, 29 NY2d 1, 5-6 (1976). The party seeking the modification bears the burden of proof. Comstock v. Comstock, 1 AD3d 308 (2d Dep't 2003). If the husband in this case fails to establish a prima facie showing of a diligent search, then this court may deny his petition without the need for an evidentiary hearing. Barson v. Barson, 32 AD3d 872 (2d dep't 2006); Stirber v. Stirber, 139 AD2d 727 (2d Dep't 1988); L.D. v. A.D., 2008 Misc LEXIS 2432 (Sup. Ct. Nassau Cty. 2009) (where the movant's [*5]paper fails to make a prima facie showing of such a change, the motion will be denied without the need to conduct a hearing).

Here, the dispute arises on whether:

(a)he meets the criteria of a "diligent search for employment" in the local job market; and,

(b)if comparable employment is unavailable locally, is the husband required to seek it elsewhere and, if so, how far does he have to travel and/or relocate?

The parties agree, as a preliminary step, that the initial threshold for the husband is to establish a "diligent job search" in the Rochester/Monroe County area. See Jeflo v. Jeflo, __ AD3d __,2011 NY App. Div. LEXIS 777 (4th Dep't Feb. 10, 2011); Simmons v. Simmons, 26 AD3d 883(4th Dep't 2006), aff'g 11 Misc 3d 1055A (Sup. Ct. Alleghany Cty. 2004). The "diligence" of a search is measured by "varying degrees of strictness." Ralph S. v. Laura S., 3 Misc 3d 1105A (Fam. Ct. Orange Cty. 2004) (visiting the unemployment office and handling odd jobs was insufficient). The husband must exercise "good faith" in the job search effort. Nauman v. Rice, 40 AD3d 1159 (3d Dep't 2009).

New York courts have required more than a token effort. A single search diary was insufficient to establish the "good faith" requirement. Ralph S. v. Laura S. at 3. Maintaining a job search diary containing only five vague and unsubstantiated entries, without telephone numbers, specific dates or details about the potential employers, and which entries dated from two years before the modification request does not meet the applicant's burden of proof. O'Brien v. McCann, 249 A.D. 92 (1st Dep't 1998). If an applicant leaves his field of work and seeks employment in another field at lesser pay, the courts have refused to countenance his choice, even if he testifies that he is "happy with the job." Davis v. Davis, 197 AD2d 622 (2d Dep't 1993). Simple "conclusory terms" describing the applicant's search will not suffice, even though the applicant's income was sliced in half. Y.G. v. A.T., 25 Misc 3d 1223A (Sup. Ct. Kings Cty 2009) (while applicant attempted to secure comparable employment, he failed to describe whether open positions existed at such entities, the methods utilized in his job search or if he was offered any positions with the companies identified); Muselevichus v. Muselevichus, 40 AD3d 997 (2d Dep't 2007) (father failed to use best efforts to obtain suitable employment and "did not act with sufficient diligence in developing and maintaining the skills necessary to obtain appropriate employment in the field of computers, in which he had some 20 years experience").

When an applicant, unemployed for 18 months, produced a computer print-out of confirmations from prospective employers of their receipt of his employment applications along with other computer records of transmitted cover letters and evidence of the submission of resumes to over 3,000 jobs, the court held that he still had not diligently searched for employment. Devane v. Devane, 13 Misc 3d 1205A (Sup. Ct. Rockland Cty. 2006). In Devane, the applicant, whose salary dropped from $85,000 annually to $8,500, had few job interviews and he did not offer any details nor specify the names and addresses of those with whom he interviewed. The testimony regarding his efforts to find employment was described by the Court as "couched and[sic] broad and general terms." The husband even testified that he applied for jobs as a driver and delivery person. Nonetheless, the Court held, after a hearing, that the applicant did not make a good faith effort to obtain employment commensurate with his qualifications and experience: [*6]

One visit to the "unemployment office" and transmitting "3,000" resumes and letters via the internet over a one and one-half year period does not constitute a a good faith effort [citations omitted] to secure employment. The Defendant is a highly-educated person knowledgeable in the financial world with international experience. He should have soon realized that repeatedly sending employment applications and resumes to prospective employers over the internet was not a fruitful method of securing employment. Additionally, he did not explore other methods of securing employment. Consequently, the Court further finds that Defendant has not met his burden of establishing his entitlement to pay child support in an amount that is less than he agreed to.

Id at 4. In contrast, the Fourth Department held that an applicant who sent out over 200 resumes, answered numerous ads and registered at 15 employment agencies had engaged in "diligent efforts" and hence, was entitled to a downward modification in child support. Preischel v. Preischel, 103 AD2d 1118 (4th Dep't 1993).^[FN7]

In a case involving a petitioner with unique skills, the Second Department reversed a finding that a former television reporter was not entitled to a downward modification of his child support. In the hearing, the husband testified that received unemployment insurance benefits for six months and made "numerous efforts to secure employment" although none of the actual "efforts" were described in the court holding. Ketcham v. Crawford, 1 AD3d 359 (2d Dep't 2003). The court held that his "diligent effort" was solely "in his field," a suggestion that a uniquely-skilled employee may meet the diligence test even if he limits his search to his field. Id at 361.

Under these precedents, the father's application in this case clearly sets forth a prima facie case that he has "diligently searched" for employment in the Rochester area. The father presents two lengthy documents. In the first he describes a series of job efforts, much of which pre-date his most recent loss of employment. In the second, he describes a series of "networking interactions" with employment-related groups during the period from mid-summer 2010 to the date of his application. These documents demonstrate:

(a)he has networked heavily, which he describes as one of the main ways of actually finding a job in this area;

(b)he has maintained employment contacts through Linked-In, an internet site;

(c)that he may have applied for jobs (although there is no evidence of the actual employers whom he has contacted);

(d)he applied for numerous teachings positions and produced evidence of rejection letters from local colleges;^[FN8] and,

(e)he has had a series of health problems, including a bout with cancer, gastrointestinal [*7]problems, and other maladies which impact his ability to work.

This evidence presents a prima facie case for a hearing on the father's request for modification.^[FN9] There is sufficient evidence to require a hearing on his "diligent job search" in the Rochester area and the Court will order such a hearing.^[FN10] Notably, the Courts that have considered these fact specific questions related to a diligent job search have often granted hearings or reviewed findings after a hearing. See Gedacht v. Aguinek, 67 AD2d 1013 (2d Dep't 2009); Devane v. Devane, 13 Misc 3d 1205A; Muselevichus v. Muselevichus, 40 AD3d 997 (2d Dep't 2007); Glinski v. Glinski, 199 AD2d 994 (4th Dep't 19993). Contra Beard v. Beard, 300 A.D 2d 268 (2d Dep't 2002).^[FN11]

Having determined that a hearing on the applicant's diligence in pursuing local employment is required, this court turns 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? In framing the Court's inquiry, it is apparent that a parent's child support obligations are "paramount." Graby v. Graby, 87 NY2d 605, 611 (1996). The guidelines enshrined in Section 413 of the Family Court Act state as a primary goal: to "equitable support awards that provide a fair and reasonable sum' for the child's needs within the parent's mean." Id at 609. See also Bass v. Rossoff, 91 NY2d 723 (1998) (describing one of the primary objectives of the CSSA — to increase child support awards so that children do not "unfairly bear the economic burden of parental separation"). The "paramount" importance of maintaining the child's standard of living is what drives the need for a diligent job search when an obligated parent loses their employment. In this Court's view then, the scope of the job search should extend beyond the convenience of either parent, and reach to a point where the benefit of employment in a new more distant location outweighs the consequences [*8]of distance on the relationship between the parent and child.

While considering the support obligation, this Court is well aware that visitation is a joint right of the noncustodial parent and the child. Weiss v. Weiss, 52 NY 2 170. The best interest of the child lies in his being nurtured and guided by both natural parents. Daghir v. Daghir, 82 AD2d 191, aff'd 56 NY2d 938. In order for the noncustodial parent to develop a meaningful, nurturing relationship with a child, the visitation must be frequent and regular. Id at 193; Zafran v. Zfaran, 2005 NY Misc LEXIS 3248 (Sup. Ct. Nassau Cty 2005). Cognizant of these two book-end policies of New York's child-parent law, this Court, in response to this application, must balance them when considering the geographic scope of the husband's job search efforts.

New York law is strangely silent on this issue and, based on this court's research, the question of the "radius of a reasonable job search" has been seldom analyzed in the Empire State. Two Fourth Department opinions begin this Court's analysis. In Jeflo v. Jeflo, __ AD3d __, 2011 NY App. Div. LEXIS 777 (4th Dep't 2011), the court held that a father, with joint custody and liberal visitation of his daughters, was considered to have diligently searched for employment in a relatively narrowly confined geographic area:

The record establishes that defendant was interviewed for several jobs over a three-month period within a one-hour radius of Syracuse before accepting the only position that he was offered, with a resulting reduction in income in the amount of $30,000. We further agree with defendant that, inasmuch as he was awarded joint custody and liberal visitation with his daughters, his failure to pursue job leads provided to him by plaintiff both in the New York City area and in states other than New York does not render his job search less than diligent.

Id. However, this case, while suggesting a resolution of the issue, is not dispositive. There is no description of the father's unique skills or qualifications. There is no description of what salary would be available if the father actually found employment in either New York City or in another state. And, the court, while conceding that the father had "diligently sought re-employment," nonetheless, denied his requested downward modification because he had voluntarily left his employment. It is difficult to draw any conclusion about the application of Jeflo in this case because the magnitude of the modification of the support requested by the father in that case was substantially less than the modification sought here. In Jeflo, the father's income dropped from $110,000 to $80,000 when he took the new job. In this case, the father's income has dropped from $82,000 annually at the time of the divorce to less than $12,000. Also, the applicant in Jeflo had joint custody and liberal visitation with his children — the applicant here no longer has joint custody of his three children and has visitation, in limited circumstances, with only one of them. Finally, the choice set forth in Jeflo seems all or nothing: the Court advises that a man living in Syracuse does not have to seek employment in New York City (approximately 275 miles away) or in "another state," which presumably references Massachusetts or Pennsylvania, which are either 120 or 150 miles away. But, Jeflo does not suggest that a "diligent employment search" for the husband is uniformly limtied to a one-hour's drive radius. That limitation would not require the husband to search of employment in either Rochester (90 miles away) or Albany (120 miles away). Based on these distinguishing factors, this Court, while cognizant of the precedental implications of Jeflo, concludes that it is not dispositive of issues present here.

A second Fourth Department case, Simmons v. Simmons, 26 AD3d 883(4th Dep't 2006), aff'g 11 Misc 3d 1055A (Sup. Ct. Alleghany Cty 2004) seems to direct a "one-hour drive" radius for a [*9]"diligent job search." The Fourth Department affirmed a lower court ruling that the husband was entitled to a downward modification of his maintenance even though he declined to seek employment beyond a two-hour drive of his home for 55 years.^[FN12] In the lower court analysis, the trial judge found that the husband had consulted a head-hunter and other business associates in his search, consulted the internet and other sources for eight hours a week, and made written applications and other oral inquiries. The court noted that the husband "lacks the specific experience required for most jobs."^[FN13] In spite of these limitations, the wife argued that the husband "should not limit his employment search to fifty miles from Wellsville, New York." The trial court held the husband was not required to search outside a 50-mile radius of Wellsville and added that he had "used sufficient efforts to obtain employment."^[FN14] The Fourth Department affirmed, describing the facts before the lower court as a "diligent job search" and concluding that the petitioning husband "had little prospect of finding employment at a salary comparable to his salary at the time of the divorce."^[FN15] Simmons, at 883. See also Glinski v. Glinski, 199 AD2d 994 (4th Dep't 1993) (husband engaged in diligent search to obtain employment in the computer field by using "numerous letters, newspaper ads and job interviews both in and outside the Buffalo area").

These cases, read together, seem to suggest that there is a "one hour's drive" radius on the geographic reach of a "diligent job search" in the Fourth Department However, the apparent bright line of "one hour's drive" seems to be an arbitrary rule, with no statutory support and the potential for a wide community based variance. For example, is the "one hour's drive" radius applicable throughout New York? Are highly congested areas, in which a one-hour's drive might only transport the driver 30-40 miles, subject to the same rule? What happens if the obligor can get a job at the same pay — or significantly higher pay — two hours drive away? What if the employer, two hours drive away, only demands the presence of the obligor three days a week? Does this seeming "one [*10]hour's drive rule" mean that a husband, whose family resides in Rochester, can decline a job with comparable (or even more) pay in Buffalo or Syracuse, which are slightly more than an hour away and still qualify for a support modification?

Before concluding the analysis of New York precedents, this Court looks to another area of law for guidance: New York holdings when a parent seeks to relocate the child and seeks modification in custody and visitation to accommodate the new location. These cases are easily distinguishable in one sense: the parent seeks to relocate and change the custody/visitation to accommodate their desired relocation. However, the analysis by the courts — the balancing of the command for economic support of the children with the visitation rights of the parent and child — provides some guidance in resolving this dispute.

In that respect, the Court of Appeals has described the balancing of child support and visitation as "some of the knottiest and disturbing problems" that the courts must resolve. Tropea v. Tropea, 87 NY2d 727, 736 (1996). They have advised on how to strike the difficult balance by establishing guidelines for determining when relocation of the child is in the best interests of the child. The factors include but are certainly not limited to:

(a)the reasons for seeking the relocation;

(b)the quality of the relationships between the child and the parents;

(c)the impact of the move on the quantity and quality of the child's future contact with the noncustodial parent;

(d)the degree to which the custodial parent's and the child's life may be enhanced economically, emotionally, and educationally by the move; and,

(e)the feasibility of preserving the relationship between the noncustodial parent and the child through suitable visitation arrangements.

Id at 740-41. The Court held that "all factors" must be considered. The Court noted that when a party desires to relocate:

[C]onflicts with the desire of a noncustodial parent to maximize visitation opportunity are simply too complex to be satisfactorily handled within any mechanical, tiered analysis that prevents or interferes with a simultaneous weighing and comparative analysis of all of the relevant facts and circumstances. Although we have recognized and continue to appreciate both the need of the child and the right of the noncustodial parent to have regular and meaningful contact, we also believe that no single factor should be treated as dispositive or given such disproportionate weight as to predetermine the outcome. There are undoubtedly circumstances in which the loss of midweek or every weekend visits necessitated by a distant move may be devastating to the relationship between the noncustodial parent and the child. However, there are undoubtedly also many cases where less frequent but more extended visits over summers and school vacations would be equally conducive, or perhaps even more conducive, to the maintenance of a close parent-child relationship, since such extended visits give the parties the opportunity to interact in a normalized domestic setting. In any event, given the variety of possible permutations, it is counterproductive to rely on presumptions whose only real value is to simplify what are necessarily extremely complicated inquiries.

[*11]Id at 738. In short, the court of Appeals rejected the use of "mechanical tests" to resolve the balancing of competing obligations in child visitation matters. The court added that in "desired relocation" cases:

It serves neither the interests of the children nor the ends of justice to view relocation cases through the prisms of presumptions and threshold tests that artificially skew the analysis in favor of one outcome or another.

Id at 740. In this court's view, a required relocation in regards to obtaining employment and the ability to pay required child support requires a similar balanced analysis and a mechanical test such as the radius of a one hour's drive.

In listing the balancing factors in Tropea, the court held that "economic benefits" are important factors and that relocation "which affects the frequency and quality of visitation rights is not the determinative factor." In Tropea, the court approved a relocation from the Syracuse area to Schenectady — a distance 130 of miles — and, in the companion case Brownard v. Kenward, 213 AD2d 400 (1996), the court approved a relocation from Westchester County to Pittsfield, Massachusetts. The court noted:

Respondent argues that the 130-mile move from Westchester County to Pittsfield will eliminate his midweek visitation opportunity, reduce his ability to participate in his son's religious worship, and diminish the quality of the weekend visits he has with his son. While these losses are undoubtedly real and are certainly far from trivial, it cannot be said that they operated to deprive respondent of a meaningful opportunity to maintain a close relationship with his son.

Id at 742. In the wake of Tropea, the New York courts have permitted children to be relocated in Saudia Arabia,^[FN16] Vancouver, Canada,^[FN17] and Toronto, Canada (from Huntington, Long Island)^[FN18]. In Gillard v. Gillard, 241 A.D. 966, 969 (4th Dep't 1997), the Fourth Department, while permitting the child to relocate to Vancouver, remanded the case to Genesee County Family Court "to fashion a visitation schedule that maximizes respondent's opportunity to maintain a positive and nurturing relationship with the child." See also Matthie v. Matthie, 65 AD3d 527,531 (2d Dep't 2009) (allowing a relocation from Westchester County to New Jersey — 59 miles — and requiring a revised "post-relocation visitation schedule" and allocation of the cost of visitation). See also Harnanto v. Gandasaputra, 78 AD3d 1527 (4th Dep't 2010) (granting a petition to move the child from Buffalo to New Jersey); Carncross v. O'Connell, 302 AD2d 931 (4th Dep't 2003)(granting a petition to relocate the child to China, provided there are "extended periods of visitation");(contra Wood v. Hargrave, 292 AD2d 795 (4th Dep't 2002) (relocation of child denied because a reasonable visitation schedule would not be feasible in view of the distance between the two locations, the financial circumstances, and the parties work schedules); Sawyer v. Sawyer, 242 AD2d 969 (4th Dep't 1997) (discussing the impact of distance travel on the best interests of the child and inferring that an 8.5 hour drive or a one-hour flight, followed by a 2.5 hour drive was too far removed to permit [*12]reasonable visitation). Because the Court of Appeals has rejected any bright-line test for determining relocation questions and instead required New York's lower courts to apply a series of factors that relate to the best interests of the child, the same principles should govern here.

From this Court's perspective, the Fourth Department holdings in Simmons, Glinski, and Jeflo can not be read to mandate a one hour's drive radius for a diligent job search in all cases. In the absence of a bright-line test, the lack of guidance from other appellate divisions, but mindful of the precedential power of the Fourth Department holdings, and adhering to the Court of Appeals admonition concerning the "paramount importance" of maintaining reasonable child support and the requirements to balance competing interests in "relocation" cases, this Court has looked for further guidance and reviewed out-of-state holdings regarding the requirements to define the geographic reach of a diligent job search.

Other states have more directly dealt with questions relating to an expanded geographic scope of a "diligent job search." In Stebbins v. Stebbins, 754 So. 2d 903 (Ct. App. Fla. 2000), the court vacated a trial court opinion that required a Jacksonville resident to seek employment in large metropolitan areas of Georgia, Louisanna or Texas before a modification could be ordered.^[FN19] The father in Stebbins argued that he faced a Hobson's choice: "move his and his current wife's primary residence and be separated by a considerable geographic distance from the parties' teenage daughter or else have income imputed to him for support purposes." While Stebbins was resolved on appeal through a Florida statute that limited imputed income to standards found in a "community," the court's balancing of the factors — the child's need for support weighed against the reciprocal bonding of the parent and child — is illuminating.^[FN20]The Court in Stebbins relies, in large measure on 1996 Virginia case, Reece v. Reece, 470 S.E. 2d 148 (Ct. App. Va. 1996), in which a husband, who lost his $154,000 a year position with R. J. Reynolds Tobacco Company and ultimately went to work as a $1,752 a month real estate agent, sought to modify his spousal support obligations. The wife argued that the husband was not entitled to a reduction because he had not found comparable employment in the Richmond area and he had declined an offer from his former employer to relocate, at the same compensation level, to Florida. The court declined to adopt a per se rule:

[W]hich would hold that the supporting spouse always becomes voluntarily underemployed or unemployed when he or she refuses to accept an offer of comparable employment in another geographic location.

Id at 152. In exercising its discretion on whether "failure to relocate constitutes voluntary unemployment sufficient to justify imputing income," the Reece court concluded that a trial court should consider a number of factors, including but not limited to:

(1)the supporting spouse's business ties to the community;

(2)the supporting spouse's familial ties to the community; [*13]

(3)whether the supporting spouse's relocation would have an undue deleterious effect upon his or her relationship with his or her children or other family members;

(4)the length of time in which the supporting spouse has resided in the community;

(5)monetary considerations which would impose an undue hardship upon the supporting spouse if he or she were forced to relocate;

(6)the "quality of life" in the respective communities;

(7)the geographic distance between the respective communities; and

(8)the severity of the burden which a failure to relocate would have on the obligee spouse.

Id. at 152-53.

After applying these factors, the court held that a reduction was justified, noting that the husband supported a daughter, in addition to his former wife, who lived in Richmond and had extensive ties to the community. See also Budnick v. Budnick, 595 S.E. 2d 50 (Ct. App. Va. 2004) (court declined to impute income to the wife because she was not required to move from northern Virginia to Norfolk, Virginia — a distance of 200 miles — when she lost employment and her children were in high school and one had special needs).

In an Indiana case, the court declined to impute income to a husband who quit his job working as a chemist, which would have required him to relocate to Minnesota where he would be less able to be a part of his children's lives. Abouhalkah v. Sharps, 795 N.E. 2d 488 (Ct. App. Ind. 2003). He sought out other employment opportunities in "the area" in order to avoid relocation, and, despite his efforts, was forced to return to a lower paying job at a company that he started. The court added:

A parent who chooses to leave his employment rather than move hundreds of miles away from his children is not voluntarily unemployed or underemployed. Instead, he is a loving parent attempting to do the right thing for his children. To punish such a parent by requiring higher child support than the guidelines require is neither good law nor good policy. It is not our function to approve or disapprove of the lifestyle of these parties or their career choices and the means by which they choose to discharge their obligations in general. [citations omitted]. The trial court's decision to deny Father's petition to modify child support because Father was voluntarily underemployed was against the logic and effect of the facts and circumstances that were before it.

Id. at 493.^[FN21]

The South Carolina courts seem to follow Indiana. In Gartside v. Gartside, 677 S.E. 2d 621 (Ct. App. S.C. 2009), the husband lost his $105,000 annual position with a yacht club. He testified that there were comparable jobs in the vicinity but none were available and that there were comparable jobs outside the "three county area" but he made no efforts to interview at those jobs. He also testified that he had repeatedly relocated from Pennsylvania, Colorado, Georgia, and Texas prior to settling in South Carolina. The court declined to impute income from the higher salary [*14]available elsewhere to the husband and lowered his maintenance payments to reflect the new reduced salary. The court noted that the husband has established his career in the local community, put down roots, made friends, and should not be forced to "leave the environment he has known for 25 years" to seek employment outside the general community. See also LaFrance v. LaFrance, 636 S.E. 2d 3, 16 (Ct. App. 2006), overuled on other grounds; Arnal v. Arnal, 636 S.E. 2d 864 (S.C. 2006) (no imputed income for South Carolina husband based on telecommunications positions available in California, Minnesota, New York, Taxes, Colorado, Washington or Arkansas because they would require relocation "outside the community in which he currently lives and away from his three minor children").

In contrast, the Tennesse and Ohio courts seem less inclined to allow modifications when comparable employment is within a day's or reasonable driving or flying distance. In Watters v. Watters, 22 S.W. 3d 817(Ct. App. Tenn. 1999), the husband lost his job when his employer General Mills closed an office in Memphis and moved the office to Atlanta. The husband declined a transfer and accepted the "best offer he could find" in Memphis. Id. at 822. The salary in the new job was less than half of his position and he sought a modification of his child support. He argued that he declined the transfer "to be near his son so he could not only exercise his visitation rights but to be involved in his son's other activities." Id. The Court held that his declining of the transfer meant his he was "voluntarily underemployed" and not entitled to a modification of his support obligations, which were pegged at the higher salary, even though that higher salary was 390 miles (6.5 hour drive) away in Atlanta. The Court noted:

While Husband's contention that he wished to remain in Memphis to stay near his son is admirable, his first obligation is to provide support to his son and to Wife. The trial court found and we concur that Husband's visitation with his son would not be curtailed by his employment schedule in Atlanta. Admittedly, Husband's ability to participate in some of his son's activities might have been affected, but this must be balanced with the need for support and maintenance. Husband is voluntarily underemployed, and the trial court was correct in not reducing his child support obligation. The trial court was also correct in imputing income to Husband based on his previous income at General Mills since this is a good indicator of his earning potential and is authorized by the guidelines.

Id. at 823.

The Tennessee court required the obligor to move 390 miles away in order to meet his child support obligations.^[FN22] This view would equate with a 6.5 hour driving distance for New Yorkers, a distance [*15]that would require the father in this case to move to New York, Cleveland, Boston, or Washington to find employment in order to fulfill his child support obligations.

The Ohio courts seem to concur with the notion that the obligor has to drive more than an hour to find comparable employment. In Lansden v. Lansden, 1999 Ohio App. LEXIS 2926 (Ct. App. Wayne Cty. 1990), the husband lived in Akron and worked in Toledo, where he earned $35,000/year as a salesman. When he was transferred to Columbus — 143 miles away from Toledo (a two and half hour's drive) — he declined, claiming he did not want to leave his kids and had a good relationship with his new wife in Akron. While the court held that he was not obligated to take the Columbus job, the court held that "it would be unfair to the children to have the support reduced to below $100 per month [from $500 per month]." Id. at 5. The Court also determined that the husband had not diligently searched for employment when he testified simply that he did not see "anything in the product line in which he was trained." Id. at 6.

A final insight — which might be considered a "split the baby" approach on the "radius of diligent job search" dilemma — is found in Rahn v. Rahn, 768 So. 2d 1102 (Ct. App. Fla. 2000). The Massachusetts-based husband, paid $68,000 annually as a field engineer for a defense contractor with more than 30 years experience, sought a reduction in the maintenance paid to his former wife in Florida. He argued that, despite a history of accepting work transfers, he reasonably declined to accept a final transfer to work in New York at comparable employment. He diligently searched for "local employment" in Massachusetts. He registered with employment agencies and mailed 60 resumes to prospective employers. Id. at 1104. He acknowledged that he might have to move to another state for employment, but he refused to take any job for less than $30,000 annually.

The court held that the 59-year-old husband was not required to take the offered job transfer. His ties to the community and his then-wife's employment in the local community justified refusing the offered transfer and justified a temporary reduction in support. However, the Court held that a permanent reduction in support was unjustified. The husband's educational credentials (he held two advance degrees), his work experience, and good health lead the Court to conclude — apparently without expert proof — that "the former husband should be able to locate employment somewhere in Connecticut, Massachusetts, Kentucky, or Pennsylvania."^[FN23] The Rahn court also added that there was "no reason why" he should limit his job opportunities to positions with salaries in excess of $30,000. Id. at 1106.

When distilled by this Court, these out-of-state opinions (and dissents) highlight the competing interests present in this case. The need for adequate support would, if weighed as the sole — or even more significant — criteria, requires the physicist-husband to travel longer distances to find "comparable employment." Conversely, if the the need to maintain his relationship with his son [*16]weighed as the sole — or even more significant — criteria, then a one-hour's drive — or potentially even a lesser distance — radius would be appropriate. In order to articulate the standards for such proof, this Court, prompted in large measure by the "all facts and circumstances" test fashioned by the Court of Appeals in Tropea v. Tropea, adopts modified version of the test articulated by the Virginia court in Reece v. Reece as the standard for evaluating whether a parent can be required to expand the geographic reach of a job search under the "diligent search" standard. Under this combined test, the following factors would be evaluated to determine whether an applicant was required to engage a broad search for employment and/or relocate for employment:

(a)the magnitude of the economic benefit resulting from the relocation for employment;

(b)the quality of the relationships between the child and the obligated parent;

(c)the impact of the relocation on the quantity and quality of the child's future contact with the noncustodial parent or other family members;

(d)the degree to which the custodial parent's and the child's life may be enhanced economically by the income derived from the relocation;

(e)the feasibility of preserving the relationship between the noncustodial parent and the child through suitable visitation arrangements;

(f)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;

(g)monetary considerations which would impose an undue hardship upon the supporting spouse if he or she were forced to relocate for employment;

(h)the geographic distance between the respective communities and the methods of travel between the communities; and

(i)the severity of the burden created by a downward modification of the support payments would have on the obligee spouse.

In addition, this court includes the catch-all phrase, commonly used by all courts: that the factors "include, but are not limited to" those set forth above. These factors, merged from Torpea and Reece, provide a reasonable foundation to evaluate whether an applicant's search for employment outside his local area, is "diligent." First, the list establishes a firm set of criteria for judicial review of the facts in the case and review on appeal. Second, the factors listed are all of relative importance — financial, emotional, and practical — depending on the circumstances of the parties. Third, the alternative use of a bright-line test — two hours' drive, for example — could be harshly applied either to the obligor or recipient spouse and would seem to be inconsistent with the Court of Appeals directives in Torpea. Fourth, this court is not convinced that any court in New York, including the Fourth Department, has mandated a bright-line, "miles-driven" radius for a diligent job search. The court declines to read Jeflo, Simmons, or Glinski to dictate that result. Fifth, this Court can not find any legislative direction to circumscribe the obligor's "diligent job search." 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.

For these reasons, this Court concludes 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 measure the economic benefit of increased support against the visitation rights of the husband, with an understanding that those rights can be preserved "through suitable visitation arrangements." Tropea, [*17]87 NY2d at 741.

The facts in this case — albeit disputed — demonstrate the wisdom of the Tropea/Reece approach. First, the suggested modification sought by the father is substantial. He seeks a reduction from more than $2,000 a month to $400 a month. The loss of income to the recipient mother is more than $18,000 annually, which would require significant adjustments in a household with three dependent children. Also, there is no evidence about the mother's financial situation and what impact the modification would have on her or, for that matter, on the children. Second, there is no evidence before this Court on what a multi-disciplinary physicist would earn in New York, Boston, Cleveland, Washington — all within a one-and-half hour flight from Rochester. If the income were substantial — in excess of $100,000 — and were a one-hour flight away as opposed to a one hour drive, and the net income, after the husband gets an apartment and pays travel costs, netted out at more than $50,000 a year annually, shouldn't the father's diligent search be required to extend that far? Third, the father has a good relationship with one of his sons but, apparently little or no interaction with his two older sons. There is no question that the visitation with the one son could be altered to provide substantial access to his son (holiday weekends, extended summer time, school breaks, and holidays) even if he were living a two-hour flight distance away. The father, while speculating about positions outside the one hour's drive of Rochester, has no evidence that he could even obtain comparable employment at any reasonable radius of Rochester, but he should be required to conduct that investigation before this Court substantially reduces his support for his children.

Importantly, in selecting the Tropea/Reece factors, this 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.

Before this Court can apply the Tropea/Reece principles, a hearing is required to establish its application to this case. At this point, the husband has not offered any evidence of an expanded job search consistent with the Court's conclusions in this opinion and the Court believes that justice requires that he have a chance to do so. Therefore, the Court holds as follows:

(a)the father's motion for a downward modification is denied without prejudice;

(b)the Court orders a hearing on the adequacy of his local job search and an expanded job search within a geographic area in which the father could obtain comparable employment and maintain his relationship with his children and such hearing will not be held for 60 days to permit the father to investigate employment opportunities within that geographic area;

(c)the father's motion to reduce his contribution to health insurance is also denied without prejudice, pending the hearing;

(d)the mother's cross-motion to transfer the child exemptions is denied for calendar year [*18]2010;^[FN24]

(e)the mother's cross-motion for attorney fees is denied without prejudice.

SUBMIT ORDER

Richard A. Dollinger