Simmons v. Simmons, 2004 NY Slip Op 51898(U) (NY 9/3/2004), 28208.

• Decision Date: 03 September 2004
• Docket Number: 28208.
• Parties: BONITA SIMMONS, Plaintiff, v. ARTHUR SIMMONS, Defendant.
• Court: New York Court of Appeals Court of Appeals

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2004 NY Slip Op 51898(U)

BONITA SIMMONS, Plaintiff, v. ARTHUR SIMMONS, Defendant.

28208.

Supreme Court of the State of New York, Allegany County.

Decided September 3, 2004.

JAMES E. EUKEN, J.

This is a motion by Mr. Simmons requesting a suspension of his maintenance and life insurance payments to plaintiff. The motion is supported by an affidavit of plaintiff sworn to April 22, 2004.

Defendant alleges in his affidavit sworn to April 22, 2004, that a Decision and Order was rendered by this Court on April 24, 2003. He alleges that on August 29, 2003, his employer terminated his employment due to downsizing and attached an unsworn copy of a letter dated September 2, 2003, addressed "To Whom it May Concern" that Arthur E. Simmons' employment was terminated due to economic reduction in force on August 29, 2003, signed by Robert H. Haffner, Manager, Human Resources, Dresser Rand.

Mr. Simmons alleges that his salary at the time of termination was $116,000.00 per year. He alleges that he received a severance check in the amount of $78,734.00 representing severance pay for thirty-five weeks commencing August 29, 2003, through April 30, 2004. Mr. Simmons further alleges that he is current with his $650.00 per week maintenance, but will have no income as of April 30, 2004.

Mr. Simmons alleges that his expenses and living expenses are essentially the same as the time of divorce except that he must pay his own medical/dental insurance in the sum of $132.00 per month. He also alleges that the divorce judgment requires him to maintain an $80,000.00 life insurance policy with plaintiff designated as the beneficiary. He alleges that the policy initially costs him $80.00 per month through Dresser Rand and is paid through June. At the return hearing, he testified this policy now costs $44.00 per month.

Mrs. Simmons (Ms. Terwilliger) did not file an affidavit in opposition. She raised the issue that Mr. Simmons' termination was not voluntary. Mr. Simmons testified to his efforts to obtain employment since his termination.

Domestic Relations Law §236 (B) (9) (b) authorizes the Court upon application of either party to annul or modify any prior judgment as to maintenance upon a substantial change in circumstance, including financial hardship. The Court must conduct a hearing to determine whether modification is warranted only where the allegations of the party seeking the modification present genuine issues of fact, (see, Mishrick v. Mishrick,¹ 251 AD2d 558; Young v. Young, 223 Ad2d 358). There is no right to a hearing absent a prima facie showing entitlement to a downward modification, (see, Lloyd v. Lloyd, 226 AD2d 816).

Here, Mr. Simmons swore that his job was terminated due to economic reduction and used his nine month severance pay to meet his maintenance obligation while continuing to search for employment. Mrs. Simmons did not dispute these facts and submitted nothing to the Court in opposition except her counsel's conclusory allegation with respect to his termination. However, the matter was adjourned for a hearing to determine whether a downward modification in the maintenance was required under Domestic Relations Law §236 (B) (9) (b).

The hearing was held on August 24, 2004. Both Mr. Simmons and Ms. Terwilliger testified. Mr. Simmons testified that he did not voluntarily quit his $116,000.00 job and the Court credits this testimony. Since his severance pay ended, he has been diligently searching for employment within a fifty miles of Wellsville, New York, where he was employed at Dresser Rand. He wants to stay within a two hour drive of Wellsville, New York, as he has lived in Allegany County his entire fifty-five years and wishes to continue to live in this county. He lives in Allegany County and his mother lives in Allegany, New York. He has been paying his maintenance and living expenses from his savings. He testified that he is looking for work in jobs paying over $25,000.00. He has consulted a former head hunter and other business associates in his search. He has utilized the internet and other sources for an average of 8 hours per week. He has made several written applications and other oral inquiries. His age and lack of a college degree have hurt his chances even though his accomplishments at Dresser...