Parmenter v. Nash, 898

• Decision Date: 09 November 2018
• Docket Number: 898,CAF 18–00514
• Parties: In the Matter of Tymothy M. PARMENTER, Petitioner–Appellant, v. Julie E. NASH, Respondent–Respondent.
• Court: New York Supreme Court — Appellate Division

166 A.D.3d 1475

87 N.Y.S.3d 759

In the Matter of Tymothy M. PARMENTER, Petitioner–Appellant,

v.Julie E. NASH, Respondent–Respondent.

898

CAF 18–00514

Supreme Court, Appellate Division, Fourth Department, New York.

Entered: November 9, 2018

LEGAL AID SOCIETY OF MID–NEW YORK, INC., SYRACUSE (JOSEPH V. MASLAK OF COUNSEL), FOR PETITIONER–APPELLANT.

ROBERT P. COLEMAN, III, WASHINGTON, D.C., FOR RESPONDENT–RESPONDENT.

PRESENT: SMITH, J.P., CARNI, NEMOYER, CURRAN, AND TROUTMAN, JJ.

MEMORANDUM AND ORDER

It is hereby ORDERED that the order so appealed from is unanimously reversed on the law without costs, the objection is granted, the petition is reinstated, and the matter is remitted to Family Court, Onondaga County, for further proceedings in accordance with the following memorandum: From 2013 to 2015, the parties resided together with their son in northern Virginia. In 2015, respondent mother relocated with the child to central New York. Approximately six months later, petitioner father quit his job in Virginia and moved to New York in order to be closer to the child. The father thereafter petitioned to downwardly modify his child support obligation on the ground that his new job in Onondaga County was less remunerative than his old job in Virginia. The Support Magistrate dismissed the petition, holding that, although the father had made good faith efforts to obtain more lucrative employment in New York, he had not demonstrated the requisite change in circumstances to warrant such a modification because he had voluntarily left his higher-paying job in Virginia. Family Court subsequently denied the father's objection to the Support Magistrate's order. The father now appeals, and we reverse.

"It is well settled that a loss of employment may constitute a change in circumstances justifying a downward modification of [child support] obligations where [such loss] occurred through no fault of the [party seeking modification] and the [party] has diligently sought re-employment" ( Jelfo v. Jelfo, 81 A.D.3d 1255, 1257, 916 N.Y.S.2d 427 [4th Dept. 2011] [internal quotation marks omitted] ). As a general rule, a parent who voluntarily quits a job will not be deemed without fault in losing such employment (see Matter of Lindsay v. Lindsay–Lewis, 156 A.D.3d 642, 643, 64 N.Y.S.3d 564 [2d Dept. 2017] ; Matter of Vasquez v. Powell, 111 A.D.3d 754, 754, 974 N.Y.S.2d 552 [2d Dept. 2013] ; Matter of Rosalind EE. v. William EE., 4 A.D.3d 629, 630, 772 N.Y.S.2d 127 [3d Dept. 2004], lv. denied 3 N.Y.3d 606, 785 N.Y.S.2d 23, 818 N.E.2d 665 [2004] ; Matter of Ludwig v. Reyome, 195 A.D.2d 1020, 1020, 600 N.Y.S.2d 584 [4th Dept. 1993] ). Nevertheless, that general rule should not be inflexibly applied where a parent quits a job for a sufficiently compelling reason, such as the need to live closer to a child (see Matter of Dupree v. Dupree, 62 N.Y.2d 1009, 1010–1012, 479 N.Y.S.2d 491, 468 N.E.2d 673 [1984] ; Matter of Smith v. McCarthy, 143 A.D.3d 726, 727–728, 38 N.Y.S.3d 588 [2d Dept. 2016] ; see also Spencer v. Spencer, 298 A.D.2d 680, 680–681, 748 N.Y.S.2d 809 [3d Dept. 2002] ). As one court has explained, a "parent who chooses to leave his [or her] employment rather than [live] hundreds of miles away from his [or her] children is not...