Platt v. Platt, No. 2011–14488.

• Court: United States State Supreme Court (New York)
• Writing for the Court: RICHARD A. DOLLINGER
• Citation: 2012 N.Y. Slip Op. 51583,960 N.Y.S.2d 52,36 Misc.3d 1233
• Decision Date: 22 August 2012
• Docket Number: No. 2011–14488.
• Parties: Christine R. PLATT, Plaintiff, v. William R. PLATT, Defendant.

36 Misc.3d 1233
960 N.Y.S.2d 52
2012 N.Y. Slip Op. 51583

Christine R. PLATT, Plaintiff,
v.
William R. PLATT, Defendant.

No. 2011–14488.

Supreme Court, Monroe County, New York.

Aug. 22, 2012.

Steven M. Witkowicz, Esq., Rochester, for plaintiff.

Robert E. Brennan, Esq., Rochester, for defendant.

RICHARD A. DOLLINGER, J.

In 2012, we live in an era of “extreme sports” and “extreme skiing.” We debate “extreme politics.” Even the New York songster Billy Joel wondered—“darling I don't know why I go to extremes.” But, when the New York State Legislature included the phrase “extreme hardship” in the Domestic Relations Law ¹ as a touchstone for determining when a modification of maintenance was permitted more than a fortnight ago, the Legislature gave little indication of how “extreme” the “hardship” had to be to qualify for a modification. DOM. REL. LAW § 236(B)(9)(b).

This Court now considers, after reviewing scores of judicial comments on the term, the extent of the “extreme” necessary to meet this Legislative test, when both the payor and recipient are in dire financial circumstances.

In March 2011, the parties entered into a separation agreement which provided that the 47–year–old husband would pay maintenance to the wife at a rate of $700.00 per month from the period of March 1, 2011 through February 1, 2015. The maintenance was back-ended, which provided that the maintenance payments would increase in later years to $1000 per month, after the couple's daughter had graduated from college. At the time that the parties entered into the agreement, the husband was employed and earning an annual salary of $68,000. The wife was disabled and receiving $721.00 per month in Social Security benefits, $60.00 per month in SSI benefits, and food stamps in the amount of $187.00 per month. After the parties were divorced, the husband's job was terminated and he began collecting unemployment benefits. This Court then reduced his maintenance obligation from $700.00 per month to $400.00 per month. In April 2012, the husband's unemployment benefits expired and he now moves for a suspension of his maintenance obligations until he regains employment. He claims that the unemployment benefits that he received until April 2012, were his sole source of income, and that he has engaged in a diligent and extensive search to obtain employment commensurate with his qualifications, both inside and outside of New York State.

The wife contends that the husband has failed to demonstrate that a continuation of the agreed upon maintenance obligation will result in extreme financial hardship to him. She argues that the husband's unemployment benefits were not the sole source of his income, and that he mischaracterizes his employment predicament when he states that he has been doing “an occasional odd job.” Instead, she alleges that he has been doing various construction and home repair projects and works as a day laborer through a service, making between minimum wage and ten dollars per hour. She also claims that it is likely that the husband has received financial assistance from his parents since he lost his regular employment. Lastly, the wife argues that the husband's assertion that he made a good faith effort to find employment commensurate with his qualifications is conclusory. Simmons v. Simmons, 815 N.Y.S.2d 496 (N.Y.Sup.Ct.2004)aff'd,809 N.Y.S.2d 709 (4th Dept.2006); see also, Davis v. Davis, 197 A.D.2d 622 (2nd Dept.1993); Szalapski v. Schwartz, 35 Misc.3d 1219A (Sup.Ct. Monroe Cty 2011)

In his response affidavit, the husband contends that he did only one such home repair project in April 2012 for which he earned $180.00 and that he has not been steadily working doing construction and home improvement projects. Furthermore, he claims that he can no longer do such work because he sold his large power tools to pay for the parties' daughter's college tuition and other bills. He also argues that he did not receive any work as a day laborer. As evidence of the employment search, the husband provided the court with a three-page list of the positions that he has applied for, the approximate dates of the application, and the location of the prospective employer. Despite his efforts, he has not received an offer of employment. He asserts that it has been extremely difficult to find employment in the IT field because he lacks a college degree. Since his unemployment benefits expired, the husband admits he has received financial assistance from his parents, as they contribute to his rent and grocery bills. Significantly, at the time of this application, the husband's statement of net worth reveals that a checking account and 401(k) are his only assets. As of May 2012, he had a balance of $978.56 in his checking account. He had $9.54 in his savings account. He drives a 2005 car with a value of $5,498. He lists household furnishings at $1,000. As of May 17, 2012, the husband's 401(k) had a balance of only $4,302.00 which he has not withdrawn from because he plans to use this money to fund the parties' daughter's college expenses next quarter.² The husband has no other assets.

He lists debts to his attorney in excess of $2,000 and a $464 debt to his physician. He borrowed money from a relative to move back to Rochester. His 2011 income tax return lists $31,452 in earned income and then $10,024 in unemployment compensation. There is no evidence of any other income. His expenses, as mapped out in his statement of net worth, are meager but nonetheless substantially exceed his income. After he pays rent, telephone, groceries, auto payments and insurance, college loans and other sundries, his monthly expenses are $2,177.75.

The wife, in her response, paints an equally dismal fiscal picture. She receives social security disability and he payments are less than $1000 per month in benefits and food stamps. When the husband first lost his income, the wife was forced to spend down her share of the husband's retirement benefits, cancel her internet service and made other adjustments. In short, both parents face an uphill financial struggle.

A party seeking to modify the maintenance provisions of a judgment of divorce in which the terms of a separation agreement have been incorporated, but not merged, must demonstrate that the continued enforcement of these maintenance provisions would create an “extreme hardship.” Pintus v. Pintus, 104 A.D.2d 866, 867 (2nd Dept.1984); DRL § 236(B)(9)(b). In addition, the movant must show that the loss of his or her income was unavoidable. Absent a prima facie showing of entitlement to a modification, the proponent has no right to a hearing. Rockwell v. Rockwell, 74 AD3d 1045, 1046 (2nd Dept.2010); ...