In this post-judgment matrimonial case, Defendant G. B. ("Defendant") moves by Order to Show Cause for a downward modification of his basic child support obligation. Plaintiff T. B. ("Plaintiff") opposes the motion. After the motion was fully submitted the Court, by the Decision and Order of Hon. Robert Neary, found that Defendant had adduced sufficient evidentiary facts to warrant a hearing, and a hearing was held over several days, concluding in October 2012 (the "Hearing"). Defendant testified on his own behalf and called his present wife as a witness; Plaintiff called no witnesses. Each party introduced a number of documents into evidence.

[*2]Factual and Procedural Background

The parties were married in 1991 and have two children (the "Children"). The parties' Judgment of Divorce was entered on December 8, 2003 (the "Judgment"). Prior to the entry of Judgment, the parties entered into a Stipulation of Settlement (the "Stipulation") on October 7, 2003, which was incorporated but not merged into the Judgment. With respect to child support, the Stipulation requires Defendant to pay basic child support in the amount of $4,500.00 per month until the Children are emancipated. The Children are now ages 16 and 14. The Stipulation also requires Defendant to pay certain child support add-ons, including unreimbursed medical and dental expenses, child care, camp expenses and the like.

Defendant's Employment History

Defendant received a Bachelor of Arts degree from Hamilton College and then a Masters in Business Administration from the Fordham University School of Business in 1995. At the time that the parties entered into the Stipulation and at all relevant times until 2007, Defendant worked in the securities industry. In 2003, his annual salary, including a bonus, was approximately $370,000.00. During the period of 2004 until 2007, Defendant was employed by various firms, and his annual compensation ranged from $120,000.00 to $250,000.00. According to his 2003 Net Worth Statement as well as the testimony adduced at trial, Defendant as of 2003 also owned liquid assets - - in cash and in stock - - in an amount exceeding $1 million, and was and remains the beneficiary of certain family trusts.

Defendant lost his employment in the securities industry in the fall of 2007. Since that time, he has held no salaried employment position. Defendant's employment history, at least from 1995 through 2007, was marked by a concentration in one particular area of the securities industry - - the area of "derivative" securities. A derivative is a security whose value is based upon the price of other investment instruments or commodities. According to Defendant, he spent virtually his entire employment career immersed in devising, trading or negotiating derivatives. Shortly after Defendant's discharge from his last employment by GFI Group in late 2007, the house of cards that was the boom in mortgage backed securities - - then a leading form of derivatives - - came crashing down, with the expected result of decreased opportunities for those who had been employed in the derivatives field.

Since October 2007, Defendant's sources of income have been extremely limited. Indeed, virtually his only earned income has been derived from an e-Bay business which he operates from his home. The business consists of buying retail apparel and then reselling the same items on e-Bay. Perhaps because the items purchased and resold by Defendant are available to many consumers directly from retail outlets, the income derived from this business has been minimal; the most Defendant has earned from his business on an annual basis was $8,000.00 - $9,000.00 in 2011.

Despite the evident lack of success of his E-bay business, Defendant has kept his child support obligations current and managed to maintain his current lifestyle - - which, while not extravagant, can aptly be described as comfortable - - by drawing on his still considerable savings and inheritances. However, as Defendant correctly points out, these alternative sources of funds, albeit substantial, are not limitless and may soon be depleted unless at least one of two things occur: Defendant finds more gainful employment, or his child support obligations are reduced to an amount more commensurate with his current income. Since the former goal has [*3]not been realized for over four years, Defendant, at the Hearing, sought to prove his entitlement to the latter. As set forth more fully below, Defendant has failed to do so because he did not prove, by a preponderance of the evidence, that he has engaged in a diligent search for suitable employment.

Discussion and Conclusions

The Standard for Downward Modification

In order to prevail on a motion for a downward modification of child support payments based upon decreased income, the moving party must prove, by a preponderance of evidence;

(1) a compelling change in circumstances since the stipulation was entered into, including financial hardship;

(2) that the moving party has diligently sought suitable employment ; and

(3) the moving party would suffer an extreme hardship if the child support payments continued at the level established by the stipulation.

See, e.g., Ketcham v. Crawford, 1 AD3d 359 (2d Dept. 2003); Beard v. Beard, 300 AD2d 268 (2d Dept. 2002); Soba v. Soba, 213 AD2d 472 (2d Dept. 1995). Defendant failed to meet at least two of these three criteria.

Compelling Change in Circumstances and Diligent Search for Employment

For Defendant and his new family, it is beyond dispute that circumstances changed for the worse in the fall of 2007. Defendant lost his job - - through no apparent fault of his own - - and his income dramatically decreased. However, the hardship that would generally follow, often with some immediacy, this financial fall from grace has yet to occur in Defendant's case here. Despite this dramatic decrease in employment income, over the past five years Defendant has managed to pay his child support obligation of $4,500.00 per month, expend over $5,500.00 per month supporting his current family, and until recently, continue his membership in a private golf club, the Sleepy Hollow Country Club. To be sure, as demonstrated at trial, Defendant has proven able to do by drawing on his savings and inheritance - - not through the success of his still nascent e-Bay venture, the average contribution of which to the Defendant's family income has been minimal.

In an effort to make a virtue of necessity, Defendant's counsel proclaims these facts in order to argue that unless the relief sought by Defendant is granted, these finite assets will be depleted. This argument assumes, however, that Defendant has made a diligent search for employment, and that despite such search, has been and remains unable to find suitable more gainful employment and therefore will remain forever relegated to relying principally upon his savings. This assumption is belied by the evidence - - or lack of it - - adduced during the Hearing, which tended to show that Defendant had not engaged in such a search and could have found or should in the future find more remunerative employment.

As recounted briefly above, Defendant is well educated, with a degree from distinguished institutions: a BA from Hamilton College and an MBA from Fordham University. Defendant has also enjoyed extensive work experience in the securities industry, where he earned substantial salaries through 2007. Despite this noteworthy background and experience and the personal contacts that generally accompany such attributes, Defendant claimed that he managed to obtain only approximately four employment interviews during the 2007-2012 period, and no job offers. Defendant sought to explain this lack of job search success by claiming that he had been, to [*4]borrow a phrase from the entertainment business, type cast as a "derivatives" specialist, and further asserted that as a result of the downturn in the securities market, there was and remains virtually no demand for work in that limited field. However, Defendant failed to present any credible evidence, other than his own observations, of such market limitations, or any independent evidence of the manner in which he, or someone similarly situated, would have been perceived by potential employers in the securities industry during the relevant time period.

Moreover, even assuming arguendo that Defendant's prior employment had been spent in a narrow substantive area, his search need not have been so limited. The law clearly requires that in order to prove that a downward modification in support is warranted, a party must show that he or she engaged in a diligent search for a position that is commensurate with that party's experience, qualifications and earning capacity. It does not permit that party to so circumscribe his search that he, effectively if not intentionally, guarantees failure.

As the Second Department held in the leading case of Beard v. Beard, 300 AD2d 268, 269 (2d Dept. 2002), while a loss of employment may well satisfy the first criteria of a compelling change in circumstances, the party seeking downward modification still bears the burden of proving that he diligently sought new employment "commensurate with his qualifications and experience." In Beard, the Court acknowledged that defendant had "lost his job as a media salesperson through no fault of his own," but nonetheless denied his downward modification request when it found his subsequent job search lacking. As the Court held,

"Although a parent's loss of employment may constitute a change of circumstances warranting a downward modification where he or she has diligently sought reemployment the proper amount of support payable is determined not by a parent's current economic situation, but by a parent's assets and earning powers. Thus, downward modification may be denied where the moving party has not made a good-faith effort to obtain employment commensurate with his or her qualifications and experience.

Although it is undisputed that the defendant husband lost his job as a media salesperson through no fault of his own, the record supports the Supreme Court's determination that he subsequently failed to use his best efforts to obtain employment commensurate with his qualifications and experience." (Citations omitted; emphasis added).

Other cases similarity so hold. See, e.g., Heyward v. Goldman, 23 AD2d 468, 469 (2d Dept. 2005) ("[A]lthough a loss of employment can constitute a change in circumstances warranting a downward modification of child support . . . the father here failed to present competent proof that his change in circumstance was not of his own making . . . or that he thereafter used his best efforts to obtain employment commensurate with his qualifications and experience" (citations omitted); Yepes v. Fichera, 230 AD2d 803, 804 (2d Dept. 1996).

To be sure, similar to the law governing mitigation of damages in an employment contract setting, the moving party's search need not be so broad as to encompass any job at any level of compensation. For example, a laid off president of General Motors would not be required, under pain of paying the same level of child support, to take a job on the factory floor. However, the search must be broad enough to include jobs beyond the pigeon hole position in which the party may ultimately have found himself. To continue the above example, the [*5]president of General Motors would not be entitled to limit his job search to the presidency of other automobile companies, but would be required to seek out and accept a suitable executive position at automotive or other similar companies, that is, "a position commensurate with his or her qualifications and experience." (Beard, 300 AD2d at 209).

By the same token, the law is also clear that a party seeking a support payment reduction cannot simply settle into a facile, less remunerative employment position that he may have fortuitously found; that is, such a party may not permissibly sit idly by, content with a far less strenuous - - and far less lucrative - - occupation when the potential for a job commensurate with his level of education, skill and earning capability is present. Thus, in Fleischmann v.Fleischmann, 195 AD2d 604 (2d Dept. 1993), the Second Department affirmed the Family Court's denial of respondent's motion for a downward modification of maintenance payments because "based on the facts and circumstances herein, the Family Court properly determined that [respondent's] reduced earnings was attributable to his voluntary decision to accept less lucrative employment." Similarly, in Fries v. Price-Yablin, 209 AD2d 1002, 1003 (4th Dept. 1994), the Court refused respondent's request for downward modification of child support when it appeared that respondent had made a conscious, voluntary decision to forgo more gainful employment at an occupation for which she had experience and training - - as a medical worker - - in favor of less taxing office work. As the Court stated,

"A party who causes her own inability to pay support is not entitled to a downward modification of support payments. Furthermore, a parent responsible for support may not unilaterally forego employment in an attempt to evade support responsibilities. The proper amount of support is not determined by a spouse's current economic situation but by a spouse's ability to provide. The record establishes that respondent is a licensed practical nurse and capable of earning more than the $60 per week that she receives from doing office work. The record supports the Hearing Examiner's finding that, "[a]lthough respondent has had physical injuries since 1986 and may have been unable to do active nursing, she could still work in a medical office on a full-time basis or work in some capacity full-time and earn the equivalent of $12,480 ($6 per hour)." It is apparent that respondent is voluntarily remaining unemployed or underemployed to avoid her obligations to provide court-ordered support."

(Citations omitted; emphasis added).

And in Davis v. Davis, 13 AD3d 623, 624 (2d Dept. 2004), the Second Department went so far as to deny defendant - - a former brick layer who had been rendered, post divorce, permanently partially disabled - - his request for child support reduction on the ground that he had "made no effort to find a job in another line of work that was not as physically demanding as his former job as a bricklayer," nor had he "attempted to seek retraining in preparation for looking for different work." See also Yepes v. Fichera, 230 AD2d 803, 804 (2d Dept. 1996). ("[A]lthough it is undisputed that the father lost his job as an electronics engineer when his employer relocated to California, the record supports the Family Court's determination that he subsequently failed to use his best efforts to obtain a new position which would utilize his education and skills").

In the instant case, the evidence adduced at the Hearing revealed that Defendant's job search was neither broad enough nor deep enough to satisfy the diligence requirement. The [*6]depth of Defendant's job search, as reflected by his own testimony and exhibits, has been questionable at best. Since Defendant did not maintain a journal or other written record of his search until 2010 - - when prompted to do so by counsel - - any such efforts prior to that time lack any documentation.In any event, the fact that Defendant, over a five year period, only managed to land approximately four meetings that could be charitably be described as job interviews speaks volumes as to the effort, or lack thereof, that he dedicated to his search.

The Court's clear impression from Defendant's testimony was that he was more actively engaged in socializing rather than with a diligent search for work in his general area of expertise - - the securities industry. Perceiving that the niche market of derivatives work had greatly contracted, Defendant seems to have simply lost interest in finding work in related securities areas. This insight, however, did not drive him to redouble his efforts to search for work an other unrelated fields. Even in the general field in which he apparently found an interest - - retail apparel sales - - Defendant's efforts to locate meaningful employment outside of his home were half-hearted at best. Indeed, Defendant appeared - - and continues to appear - - content to sit at home with his computer, reselling clothes on e-Bay, in a business that has never realized a gross income of over $10,000.00, and seems more of a hobby than a viable concern. Perhaps, as Defendant hopes, his business will prosper in the future; but if past is prologue, that wish is just that, and his reliance upon such an employment model hardly reflects the diligent search for suitable work within the meaning of pertinent case law.

Indeed, from the evidence adduced at the Hearing, it appears, as in Fleischmann, 195 AD2d at 604, "that [Defendant's] reduced earnings was attributable to his voluntary decision to accept less lucrative employment" and, as in Fries, 209 AD2d at 1003, that Defendant "is voluntarily remaining unemployed or underemployed to avoid [his] obligations to provide court-ordered support." (See also discussion supra pp. 6-8).

In any event, Defendant did not sustain his burden of proving that there has been a compelling change in circumstance that would mandate the extraordinary step of altering the child support regime long ago agreed to, and consistently honored thereafter by the parties. Among other things, Defendant's failure to show that he has undertaken a diligent search for suitable employment precludes such a finding.

Extreme Hardship.

Nor did Defendant establish that a failure to modify his child support obligation would work a severe hardship upon him or his family. As mentioned previously, despite the downturn of his employment fortunes, Defendant has managed to timely pay his child support obligations as well as make a substantial contribution to his current family's needs. While he has drawn upon financial sources other than earned income in order to do so, the evidence adduced at the Hearing indicated that significant resources, current and potential, remain at his disposal.

As the Second Department held in Talty v. Talty, 42 AD3d 546, 547 (2d Dept. 2007) even if the party seeking to reduce support payments has experienced a decrease in salary, as long as he is "nonetheless possessed of sufficient means' to provide support at the level directed in [the] support order" such an application should be denied. See also, Fleischmann v. Fleischmann, 195 AD2d 604 (2d Dept. 1993). On the other hand, no meaningful evidence was adduced to show that Plaintiff, as the custodial parent, does not need the bargained-for amount of child support in order to care for the parties' Children. Indeed, in view of the fact that the [*7]Stipulation was finalized over five years ago, and the amount of child support has not increased since that time, it is unlikely that a lesser amount will now suffice.

Conclusion

By reason of the foregoing, Defendant has failed to maintain his burden of proving by a preponderance of the evidence that he is entitled to a reduction in his child support payments. The Court declines to exercise its discretion to award attorneys fees to either party. See DRL �237(a); DeCabrera v. DeCabrera-Rosete, 70 NY2d 879 (1987). Accordingly, Defendant's motion is denied in all respects, each party to bear his or her own fees and costs.

The foregoing constitutes the Decision and Order of this Court.

Dated: July 8, 2013

White Plains, New York

Hon. John P. Colangelo

Acting Supreme Court Justice