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#285 Third Department Caselaw Round-Up for January 12, 2012, Part 13 of 14

142 Post 01-12-12, Part 13 Third Department January.pngThe first case is really just the companion case to Case #125, analyzed in the last post, with the same result. The second case involves the downward modification of a support order – a rarity.

29-32 Post Tompkins County.pngCase #126 #511263/512391
Florence F. v. Michael G., ___ A.D.3d ___, ___ N.Y.S.2d ___ Tompkins Family – Rowley Issues: Custody; Permanent Neglect; Standing; Suspended Judgment; Termination of Parental Rights Cited statutes: CPLR §5511; FCA Art. 6; SSL §384-b Affirmed & Dismissed

As previously discussed, in the last post, it is relatively simple to avoid some of the pitfalls one encounters in cases such as this. First of all, the client (and, obviously, the attorney) should be sure to not only attend every court appearance, but to be prompt or (better yet!) early to such appearances.

Missing a court appearance can prove to be fatal to one’s case. If one is the petitioner, the judge could simply dismiss the petition (with or without prejudice) for the petitioner’s failure to appear/failure to prosecute and the petitioner would then have to file a new petition. If one is the respondent, the judge could simply find the respondent in default for the respondent’s failure to appear and thereupon enter an order or the judge could convene an inquest (a trial without the respondent present), as apparently happened here.

Probably most important of all is for one’s attorney to be as creative as possible. And the only way an attorney can be creative is to know the law – cold. It also helps to be familiar with the people who are prosecuting your client (especially the caseworkers!). Therefore, a decent attorney should not only have an A Game and a Plan B, but they better have a pretty good idea about Plans C, D, and E as well. The best attorney gives his or her client the greatest number of possible options from which the client then gets to choose.

29-9 Post Ulster County.pngCase #127 #512325
Smith v. Smith, ___ A.D.3d ___, ___ N.Y.S.2d ___ Ulster Supreme – O’Connor Issues: Custody; Divorce; Evidence; Maintenance; Modification of Child Support Cited statutes: DRL §240 Affirmed

Child support modification cases are always interesting because they usually revolve around someone’s misfortune and how people respond to it, and it is usually never pretty. Upward modifications are usually brought by custodial mothers and downward modifications are usually brought by non-custodial fathers. But you already guessed that, didn’t you? The more difficult client to represent is usually the non-custodial father, since it is very difficult to convince a support magistrate to relieve your client from his child support obligation in favor of a lower child support obligation.

I often half-jokingly tell my male clients that the only way to get out of this obligation are the horrors of disability, dismemberment, and death. The Big Ds. Lost your job? Beeeeeeeeeep! Wrong answer. Lost your health? Better answer? Lost a limb? You get the picture. There’s a reason for this and it should be obvious to any taxpayer: if you don’t support your children, then the State may have to step into your shoes to do so.

In this case, the parties were divorced and the mother was awarded sole custody of their four children. Pursuant to the Child Support Standards Act (CSSA), the father was ordered to pay $2,887.00 per month in child support, given his income of $160,000.00. The father was a sole proprietor of a veterinarian practice. The mother had no income (presumably due to being a stay-at-home mom) and was awarded durational maintenance.

And then, tragedy struck. The father was severely injured in a motor vehicle accident in 2007, and, in 2009, he sought a downward modification of his child support obligation, alleging a substantial change in circumstances. Due to his injuries, the father was severely limited in his ability to be a veterinarian. After a hearing, the trial court agreed with him.

The father’s child support obligation was thereafter reduced by almost 80% to $634.96 per month, based upon both his now severely diminished income ($25,000.00), together with his Social Security Disability benefits, and the mother’s current income ($50,000.00). The mother appealed.

The Third Department affirmed, primarily on the basis of the dearth of evidence the mother presented to support her argument that the father could, allegedly, do various other forms of veterinary work. And the court gives the primary reason why these sorts of cases are so difficult to win for non-custodial/primary breadwinner parents: “a request for a downward modification of child support based on loss of employment due to injury or illness may be denied where the parent seeking the modification still has the ability to provide support through some other type of employment”.

As previously stated: to win these sorts of cases, you need to show disability or dismemberment, while death will get you off the hook entirely.

In this case, in light of the extent of his injuries, the father did the right thing by his children. Despite the father having received a personal injury settlement, which he could have converted for personal purposes, he instead exhausted most of it to pay whatever child support arrears he had accrued. Furthermore, due to his own disability, his four children were entitled to, and received, derivative Social Security Disability benefits.

So, dads (and moms), if you want to get out of this sort of obligation, either have no (or fewer) children or wait until the kids have “aged-out” before getting divorced. Because, short of disability, dismemberment or death – it ain’t happenin’.

Caselaw Round-Up Score Card:

Affirmed: 85 (66.93%)
Decision Withheld: 6 (4.72%)
Dismissed: 8 (6.30%)
Modified: 11 (8.66%)
Reversed: 17 (13.39%)

Total: 127