S.S. v M.S. (2011 NY Slip Op 50213(U))

S.S. v M.S.

2011 NY Slip Op 50213(U) [30 Misc 3d 1226(A)]

Decided on February 17, 2011

Supreme Court, Nassau County

Maron, J.

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and will not be published in the printed Official Reports.

Papers Submitted

Order to Show Cause, Affidavit, Affirmation, Exhibits Annexed.......................................X

Affidavit in Opposition, Exhibits Annexed........................................................................X

____________________________________________________________________ ________

Defendant ("Husband") moves by Order to Show Cause, dated November 15, 2010, seeking an Order granting him a downward modification of his current child support obligation and spousal maintenance obligation retroactive to the date of this application. Plaintiff opposes Defendant's application

The parties' marriage was dissolved pursuant to a Judgment of Divorce dated November 13, [*2]2008, entered with the Nassau County Clerk's Office on November 17, 2008, which incorporated, but did not merge with, the parties Stipulation of Settlement dated July 1, 2008 (the "Stipulation"). There are two children of the marriage, to wit: D., born May X, 1994; and T., born January X, 1997.

Article VIII of the Stipulation states the following in pertinent part:

B. During his lifetime, the Husband shall pay to the Wife for her support and maintenance the following sums during the following periods of time, commencing on the first day of July, 2008, and on the first day of each month thereafter for a period of eight years:

Article IX of the Stipulation states the following in pertinent part:

A. Commencing on the first day of July, 2008, and continuing thereafter on the first day of each month the Husband, during his lifetime, shall pay to the Wife, for the support of the two unemancipated children of the parties the following sums during the following periods:

In support of his application for a downward modification of his support obligations, Husband claims that his income has been reduced by approximately 58% and that such a reduction constitutes a substantial, unanticipated negative change in circumstances.

At the time the execution of the Stipulation, Husband was employed as the President and Chief Operating Officer of X Mortgage Company. He had been employed byX Company since 2005. Husband claims that he had a history of advancement within the company and had an expectation of continued employment with the company. He claims that in 2007, he signed a three-year contract with a salary of $200,00.00. He further states that, for reasons more specifically set forth in his Affidavit, that termination of his employment with the company was "inconceivable." Husband's position, however, was excised in a merger, and he was terminated on August 2, 2009. He claims that notwithstanding his incessant and diligent efforts to find new employment, he was unemployed for a period of approximately three months. During the approximate fifteen weeks that he was unemployed, he received $433.00 per week as unemployment benefits. Although he states that he could not have foreseen these circumstances at the time he entered into the Stipulation.

Husband claims that on November 15, 2009, he accepted employment with Y Mortgage with [*3]a base salary of $52,000.00, plus commissions. He claims that throughout his employment with Y Mortgage, he continued to seek better employment opportunities, but that when his superiors discovered his outside efforts, he was terminated on September 1, 2010.

Husband annexes to his moving papers a copy of his final paycheck from Y Mortgage for the period beginning August 27, 2010 and ending September 10, 2010, which shows a base salary of $52,000.00 and a year-to-date gross earnings of $81,758.55.

After his termination from Y Mortgage, Husband states that he quickly obtained employment with Z Bank. He claims he does not receive a salary, but rather only a draw against commissions. He claims that he has been forced to liquidate assets to remain current with his obligations, and that his health has been severely impacted.

Husband states that he has only been able to pay $5,000.00 in July, 2010 and $8,000 per month for the months of August and September of 2010. He claims that as of the time of his application, he paid $7,000.00 to his former Wife towards his support obligations and was expecting to borrow an additional $2,000.00 to pay towards support. He does not set forth from whom or where he expects to borrow the funds.

Husband submits a sworn Statement of Net Worth which he argues demonstrates a reduction in his net worth. His sworn Statement of Net Worth is incomplete, insofar as, inter alia, it fails to comply with 22 N.Y.C.R.R. 202.16(b), to wit: no W-2 Form or income tax return is annexed and Section III is incomplete. He further fails to set forth the total amount of assets, and has not submitted the retainer agreement between he and his attorney.

Husband has further failed to provide this Court with any information relating to any severance benefits paid to him by Prudential or any benefits to which he was entitled under the new three contract he signed in 2007. He also failed to provide this Court with any tax returns, W-2 Forms, or current pay stubs.

Section 236(B)(9)(b) of the Domestic Relations Law gives the court the authority, upon application by either party, to annul or modify any prior order or judgment as to maintenance or child support, upon a showing of substantial change in circumstance, including financial hardship. The movant must make a prima facie showing that there has been a substantial, unanticipated and unreasonable change in circumstances wherein continued enforcement of the payor's maintenance and/or child support obligation would create extreme hardship.

Upon an application for a downward modification based upon the payor's involuntary reduction in income, such application must be determined not only upon the payor's current earned income, but upon consideration of the payor's "assets and earning capacity." Fragola v. Alfaro, 45 AD3d 684 (2nd Dept. 2007).

"Absent a prima facie case establishing entitlement to a downward modification, the party seeking modification has no right to a hearing." Miller v. Miller, 18 AD3d 629, 796 N.Y.S.2d 97 (2nd Dept. 2005).

With respect to the instant application, Husband has failed to demonstrate that continued enforcement of his support obligations would create extreme hardship. Although Husband submits an incomplete sworn Statement of Net Worth, he does, however, state in his Statement of Net Worth that he is the title owner of a Smith Barney Brokerage Account with a cash value of over $500,000.00, and that he is the title owner of an IRA held at Smith Barney with a cash value of over [*4]$163,000.00. Although he lists a Broker Margin Account held at Smith Barney with a negative value of $7,000.00, and negative equity in the parties' Ski House in QNew Jersey, the Court finds that Husband owns sufficient assets such that continued enforcement of his obligations do not presently create extreme hardship. There is no issue of fact here, the amounts set forth herein above are by Husband's own admission.

Furthermore, Husband has failed to submit competent documentary evidence to demonstrate his efforts to find employment commensurate with his earning capacity, comprised of his ability, training, education, and extensive experience. Failure to substantiate, by competent proof, such diligent efforts warrants denial of an application for a downward modification without a hearing. Barson v. Barson, 32 AD3d 872 (2nd Dept. 2006).

Having failed to make a prima facie case establishing his entitlement to a downward modification, and having failed to provide this Court with sufficient financial disclosure [see, Praeger v. Praeger, 162 AD2d 671, 557 N.Y.S.2d 394 (2nd Dept. 1990)], Husband's application is DENIED in its entirety without the necessity of a hearing.